Lead Opinion
The defendant was convicted of the crime of murder in the second degree in the district court of Bowman county
The only errors urged by appellant for a reversal relate to certain rulings made by the trial court during the introduction of evidence; failure to give more specific instructions upon certain propositions of law, namely, circumstantial evidence, corroboration of an accomplice, and an alibi; and the insufficiency of the evidence to sustain the verdict.
The trial court submitted a written charge, and no requests were made for any further or additional instructions, nor were any exceptions taken to any part of the charge as given. In the motion for new trial, the only reasons urged are: (1) That during the trial of the action the jurors were permitted to go at large, and were not confined in the custody of bailiffs, and that, at that time, there were present a large number of witnesses and other persons who were hostile to the defendant in the court room, hotels, restaurants, and other places where the jurors necessarily had to go, and that a great deal of bitterness existed against the defendant among the people where he was being tried; and (2) that during his argument to the jury, one of the attorneys for the prosecution made certain statements indicating that the defendant and one Thomas Carberry, the principal witness for the state, were accomplices. These facts were asserted upon the affidavit of T. D. Casey, the attorney for the defendant, and no other affidavits or evidence of any kind submitted in support of said motion for a new 'trial. In opposition to said motion the state submitted the affidavits of one of the attorneys for the prosecution, who denies making the statement referred to; the affidavit of the presiding judge, who states “that when the jury in said action was impaneled, the attorneys for the state and T. D. Casey, attorney for the defendant, in open court, 'requested the judge not to put the jurors in said action in custody of bailiffs, but to permit them to separate, for the reason that there were no adequate quarters available for the lodging of the jury during the trial of said action, and that the court thereupon, at the request of the said T. D. Casey, attorney for the defendant, and J. K. Swihart and W. IT. Burnett, attorneys for the
The defendant in no manner challenged the sufficiency of the evidence, either by motion for an advised verdict of not guilty, or by motion for new trial; neither did he assert in his motion for new trial any error in the court’s rulings on the admission or rejection of evidence, or in the instructions given to the jury or the failure to instruct. Therefore, so far as the trial court was concerned, it was led to believe that no complaint was made as to any ruling made by the court relative to the admission or rejection of evidence, the court’s instructions to the jury, or the sufficiency of the evidence to sustain the verdict.
The laws of this state enumerate seven causes for granting new trials in criminal actions, among which are the following: “. . . [¶] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, or has done or allowed any act in the action prejudicial to the substantial rights of the defendant. 6. When the verdict is contrary to law or clearly against the evidence.” Comp. Laws 1913, § 10917.
The only errors asserted by appellant on this appeal fall within the provisions of the above two quoted statutory provisions; but, as already stated, defendant did not embody any of these grounds in his motion for a new trial, but seeks to assert them for the first time on this appeal. The question is therefore presented, whether the defendant, having failed to incorporate these grounds in his motion for new trial, can now predicate error thereon in this court.
It is contended by defendant’s counsel on oral argument that in view
In the case of State v. Campbell, 7 N. D. 67, 72 N. W. 935, this court, in considering the question of whether or not, in a case where specific exceptions had been taken by the defendant to certain portions, of the court’s instructions, he might avail himself of the provisions, of the statute whereby the instructions were deemed excepted to by operation of law, uses the following language: “It appears that the-defendant’s counsel in this case saw fit to file exceptions with the clerk of. the district court to the instructions given in the charge to the jury. This he might lawfully elect to do under the provisions of § 8178 of the Rev. Codes. Bui, having pursued this course, he must be governed by such election, and will be limited to the exceptions’ which he has seen fit to write out and file with the cleric of the district court. By filing exceptions he has notified counsel for the state,, as well as the courts, that he will predicate error on such exceptions, and none others so far as relates to the instructions given to the jury.” “Where rulings of the trial court constitute proper grounds for a new
It is contended that the evidence is insufficient to sustain the verdict. This question cannot be reviewed on this appeal. The failure to assert such insufficiency as one of the grounds for new trial in the court below precludes the defendant from doing so in the appellate court. State v. Empting, supra; State v. Reilly, 25 N. D. 339, 141 N. W. 720; State v. Harbour, 27 S. D. 42, 129 N. W. 565. “An objection to the sufficiency of the evidence upon which a conviction was based cannot be raised for the first time on appeal.” 12 Cyc. 813.
. We are satisfied, however, that the contentions of the defendant are untenable for other reasons. As already stated, it is conceded that no requests for additional instructions were made, and no exceptions to the charge taken for want of such instructions, nor was this made one of the grounds for a new trial. It is not contended that any of the principles of law laid down by the trial court in its charge are erroneous, the only complaint being that the court failed to charge on certain propositions of law. And while we do not believe that the question of the sufficiency or insufficiency of the instructions is before this court for consideration, still, in view of the importance of the case we have carefully examined the instructions and are satisfied that they fairly submitted the case to the jury.
The defendant’s first contention is that the trial court’s instructions on circumstantial evidence were insufficient. This contention is wholly without merit. In the case at bar the state’s case does not rest wholly upon circumstantial evidence, as the witness Carberry gave direct testimony against the defense, hence, error cannot be assigned upon the failure of the trial court to instruct as to circumstantial evidence. State v. Foster, 14 N. D. 561. The defendant’s contention is of no merit for another reason, viz., the trial court gave the following instructions to the jury: “I charge you, gentlemen of the jury, that circumstantial evidence is legal and competent in criminal cases such as this is, and, if it is of such character as to exclude every reasonable hypothesis other than that the defendant is guilty, is entitled
The question whether the court is required to instruct the jury with reference to the corroboration of the testimony of an accomplice in the absence of a request so to do, is no longer an open question in this state, as the rule is well settled that it is not error for the court to omit such instructions in the absence of a request. State v. Haynes, 7 N. D. 353, 75 N. W. 267; State v. Rosencrans, supra; see also State v. Hams, 24 S. D. 639, 124 N. W. 955, Ann. Cas. 1912A, 1070.
Neither was it reversible error on the part of the trial court to fail to instruct on the subject of an alibi where no request was made for an instruction on that feature of the case. Ferguson v. State, 52 Neb. 432, 66 Am. St. Rep. 512, 72 N. W. 590; Rider v. State, 26 Tex. App. 334, 9 S. W. 689; Lyon v. State, — Tex. Crim. Rep. —, 34 S. W. 947; Smith v. State, — Tex. Crim. Rep. —, 49 S. W. 583; Goldsby v. United States, 160 U. S. 70, 40 L. ed. 343, 16 Sup. Ct. Rep. 216; Com. v. Boschino, 176 Pa. 103, 34 Atl. 964; Gadlin v. State, 13 Ga. App. 660, 79 S. E. 751; Banks v. State, — Tex. Crim. Rep. —, 150 S. W. 184; Inklebarger v. State, 8 Okla. Crim. Rep. 316, 127 Pac. 707. And, as a general rule, in order to predicate error on incomplete instructions, it is necessary to submit a request to the trial court for appropriate instructions. And this court has held that it is not error for the trial court to omit a definition of reasonable doubt in the absence of a request therefor. State v. Montgomery, 9 N. D. 405, 83 N. W. 873. See also People v. Carter, 117 Mich.
The court’s failure to instruct on the law relative to the corrobora tion of an accomplice might be justified on another ground. We find that the defendant’s attorney, in his affidavit submitted in support of the motion for a new trial, after setting forth the statements claimed to have been made by one of the prosecuting attorneys in his argument to the jury, goes on to say: “Thus prejudicing the defendant in the eyes of the jury, and leading them to believe that said Carberry . . . was an accomplice in such crime with said defendant, Herbert Glass; that no evidence of such fact was produced in the trial of said case, nor was the case tried, nor were the instructions of the court given, upon the theory that Herbert Glass was an accomplice with Carberry in
The alleged errors concerning the admission of evidence are wholly without merit. . The principal portion of the testimony complained of was received without objection, — some of it in response to questions asked by defendant’s counsel. No error can be predicated thereon.
We have already enumerated the grounds set forth in the motion for new trial and the affidavits submitted for and against the same. The first ground of such motion is that the jury was permitted to separate while the case was being tried, and before its submission to the jury. Under the laws of this state it was within the discretion of the trial court to permit the jury to separate while the cause was being tried. Comp. .Laws, § 10857. And in view of the fact that such separation was permitted at the request of defendant’s own attorney, it is obvious that the trial court did not abuse its discretion in permitting such separation. The other ground of such motion, as already stated, is that one of the attorneys for the prosecution, during his argument to the jury, made certain remarks prejudicial to the defendant, and this is apparently the only ground that was seriously urged in the court below. No exceptions were taken by defendant’s counsel to the remarks alleged to have been made by the state’s attorney during his argument to the jury, and no request was made to have the jury instructed to disregard such statements. In fact, so far as the record shows there is nothing to indicate that such statements were made. In order to predicate error on such statements, however, it is essential to take proper exceptions thereto, and give the trial court opportunity to rectify the error if any. State v. Matheson, 142 Iowa, 414, 134 Am. St. Rep. 426, 120 N. W. 1036; People v. Giddings, 159 Mich. 523, 124 N. W. 546, 18 Ann. Cas. 844; Holmes v. State, 82 Neb. 406, 118 N. W. 99; State v. Holburn, 23 S. D. 209, 121 N. W. 100. But even though no such request was made, we find that the trial court in its instructions to the jury expressly instructed the jury as follows: “The argument of counsel here before you was made for the purpose of assisting you in determining the true facts' in this case. Any statements made by them are not to be considered as evidence by you in this case. If they have expressed opinions in your
The defendant was tried in a different county from the one wherein the crime was committed, at a period almost two years subsequent to the commission of the crime. There is nothing in the record to indicate that the defendant did not receive just and fair consideration at the hands of the trial court and jury. The motion for a new trial was properly denied. It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.
Rehearing
On Petition for Kehearing.
A strenuous petition for rehearing has been filed in this ease. It may be remarked at the outset that the petition in no manner complies with the rules of this court relating to such petitions, and sets forth no ground on which a rehearing may proqierly be asked, but is merely a reargument of certain portions of the case. The only points argued are those coming under ¶¶ 1, 2, 4, and 5 of the syllabus. Appellant’s counsel virtually contends that in a criminal case there can be no such thing as waiver of or estoppel to assert error, and that these rules apply only to civil litigants. To quote from the petition for rehearing itself: “While the legislature has seen fit to surround the civil litigant with certain restrictions so that he may be bound by the act of his counsel, no matter how foolish it may be, such is not the case with respect to men who are charged with crimes. The state is so anxious to protect the man charged with the commission of an offense, that it even furnishes him counsel, if he is unable to procure it himself; and is it possible that the legislature has provided a law by which it will say that we will protect a citizen by furnishing him a counsel, and then make him responsible for all of the foolishness of that counsel?” The doctrine contended for by appellant’s counsel is, to say the least, somewhat strange, and if carried on to its logical conclusion
In discussing tbe doctrine of waiver of rights, Bishop’s New Criminal Procedure says: “In natural reason, one should not complain of a thing done with his consent. And the law, in all its departments, follows this principle. It is analogous to estoppel, or a species of it. Like any other legal doctrine, the circumstances of a particular instance may compel it to give way to another. ... If, except where some counter doctrine presses with a superior force forbidding, a party has requested or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he cannot afterward complain of it, however contrary it was to his constitutional, statutory, or common-law rights. Necessity is the chief foundation for this doctrine. Without it, a cause could rarely be kept from miscarrying. The mind, whether of the judge or the counsel, cannot always be held taut like a bow about to send forth the arrow; and if every step in a cause were open to objection as well after verdict or sentence as before, a shrewd practitioner could ordinarily so manage that a judgment against his client might be overthrown. Even by lying by and watching, if he did nothing to mislead, he would find something amiss to note and bring forward after the time to correct the error had passed.” Bishop, New Crim. Proc. §§ 117 — 119, pp. 88 and 89.
By application of the same principle, we held in the opinion in this case that where the defendant makes a motion for a new trial, he is bound by the reasons assigned therein, and that all matters which would constitute grounds for a new trial and which are not set forth
Doubtless the appellate court has the right, in order to prevent an unjust conviction to stand, to disregard the waiver of the defendant, and in this case this court disregarded such waiver and passed upon all the various propositions raised, and decided the same adversely to the appellant.
In the petition for rehearing, appellant vehemently asserts that because the trial court failed to incorporate an instruction on the law relative to an alibi, that the defendant was deprived of a substantial right, and that the judgment should be reversed. And in support of this contention, counsel for defendant cites § 11013 of the Compiled Laws, which reads as follows: “After hearing the appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.” The argument of appellant’s counsel seeks to defeat the obvious purpose for the enactment of the section cited. Stripped of all legal phrases, the question submitted to the jury in this case was: “Did the defendant, Herbert Glass, shoot and kill Thomas Corcoran at the
An alibi in criminal law is defined in Black’s Law Dictionary as follows: “Elsewhere: in another place. A term used to express that mode of defense to a criminal prosecution, where tbe party accused, in‘order to prove that be could not have committed tbe crime with which be is charged, offers evidence to show that be was in another place at tbe time; which is termed setting up an alibi.” And in Bou-vier’s Law Dictionary: “Presence in another place than that described. When'a person charged with a crime proves (se eadem die fuisse alibi) that be was, at tbe time alleged, in a different place from that in which it was committed, be is said to prove an alibi, tbe effect of which is to lay a foundation for tbe necessary inference that be could not have committed it.” And in 2 Cyc. 79, “Literally, ‘elsewhere.’ A defense in criminal law in which tbe defendant shows that be was at another place at tbe time tbe crime charged was committed.” And in 2 Am. & Eng. Enc. Law, 2d ed. 53, “Tbe word ‘alibi’ means literally, ‘elsewhere,’ and a prisoner or accused person is said to set up an alibi when be alleges that, at tbe time when tbe offense with which be is charged was committed, be was ‘elsewhere;’ that is, in a place different from that in which it was committed.”
It is defined by Bishop as follows: “An alibi is, in criminal evidence, tbe defendant’s showing, under bis plea of not guilty and without special averment, that when the criminal thing was done, he was at some place where he could not be the doerBishop, 'New Crim. Proc. § 1061.
With reference to tbe evidence admissible and tbe facts to be considered in connection with an alibi, it is said: “On tbe question of alibi tbe relevant facts are tbe distance between tbe scene of tbe crime and tbe prisoner’s alleged whereabouts at tbe time of its commission, and tbe time of tbe crime, as compared with that of tbe alibi, allow
And in Wharton’s Criminal Law, 11th ed. § 380, it is said: “The defense of alibi, i, e., ‘elsewhere,’ or presence in another place than that described at the time the alleged offense was committed, is not, properly speaking, a defense within any accurate meaning of the word ‘defense,’ but is a mere fact shown in rebuttal of the evidence introduced by the state. . . . Impossibility of presence at the time and in the place charged is the essential feature of this defense, and any proof tending to show that it was reasonably impossible for the accused to have been present at the time and place of the commission of the offense charged is sufficient to establish the defense.” In our original decision in this case, we did not deem it necessary to refer to the evidence in the case to any great extent, and based our conclusions upon general legal principles, but in view of the ardent and strenuous assertions in the petition for rehearing that the trial court’s failure to instruct the jury upon the law applicable to an alibi and corroboration of an accomplice deprived defendant of his substantial and fundamental rights, we deem it desirable to briefly present the evidence, as contained in the record, applicable to these two propositions.
The court’s instructions are given to aid the jury in determining the issues involved. And instructions which would tend to confuse rather than enlighten would therefore be improper. The instructions necessarily ought to be confined to the issues presented by the evidence. According to the undisputed testimony of all witnesses, including that of the defendant himself, Thomas Corcoran was shot in or by the side of his wagon during the night of September 3d, and his dead body found in the wagon on the morning following. The defendant, Glass, testified that Thomas Corcoran’s wagon was situated in the same block as Glass’s house, and only between 80 and 100 feet from the defendant’s house. The defendant and his wife both testified that some time after 10 o’clock at night they heard a shot fired, and then went to a window and looked out and saw two men at the wagon in an altercation, and that while they so stood and watched one man fired a shot at the other,' — -the two men by the wagon being then about 6 or 8 feet apart. That after the shot was fired the man at whom the shot was fired slowly got into the wagon, and
The other proposition argued in the petition for rehearing is that the court should have submitted an instruction on the law relative to the corroboration of an accomplice. As we have already stated in the original decision, it was expressly contended in the court below that Carberry and Glass were not accomplices. This appears from the affidavit of defendant’s attorney submitted in support of the motion for new trial, and Glass testifies that he had absolutely nothing to do with the murder of Thomas Corcoran, had no connection whatever with Carberry, and had no notice or knowledge of the murder until the next day, and that at the time he suspected Carberry of having committed the murder. Thomas Carberry, on the other hand, positively denies any connection with the murder, and testifies positively as an eyewitness that Herbert Glass shot and killed Thomas Corcoran. Carberry’s testimony on various points is corroborated by other witnesses. Therefore, in order for the trial court to instruct on the law relative to the corroboration of an accomplice, it would have been necessary for the trial court to instruct in absolute disregard of the theory of defendant’s counsel, and in direct contravention not only of the testimony of the defendant and his wife, but of all the witnesses who testified in the case. And we have no doubt that if the trial court had instructed of its own volition on the law relative to the corroboration of an accomplice or the law relative to an alibi, that it would now be just as earnestly urged on this appeal that such instructions were erroneous and prejudicial to the substantial rights of the defendant. The argument submitted by appellant’s counsel in this case shows to what extent technicalities have been permitted to permeate our system of criminal procedure. The business of the courts is to try and deter-^