*1 excep- mutuality its traditional rule and d
tions, from Comment appears Dakota, STATE North Plaintiff as follows: “Collateral which reads Respondent, § personal parties to valid estoppel. The findings of by are concluded KLEIN, Delmar D. Defendant litigated issues upon or of law fact Appellant. rules stated in §§ accordance 414. Cr. No. not, findings do These 68-72. parties are or persons who not affect Supreme of North Court Dakota. judgment. action and the privies July 27, 1972. it is that a Thus, in an action found Sept. Rehearing Denied conveyance not contract or was or was void, parties or that one of was or negligence, or so guilty fraud action the so found another fact parties, be conclusive between finding persons has no effect parties or privies
who were not
judgment, except as stated in 94-111. §§ although persons such were is true
This action, in the outcome of
interested in a participated were witnesses capacity for benefit
representative They not bound parties.
one are operate nor the determination does subsequent actions
in their favor them and one
tween
the action.” A,L.R.3d 1060, 1061. present
In the action Armstrong Mrs. appear representative capacity
does not in a heir, capa-
or as a successor or in which privity
cities she would have subject in the
matter in the action. first second appears
action she in her capa- individual capacity
city, in which she not have does subject
an interest action, privy therefore
first is first action.
Adhering rule, mutuality Mrs.
Armstrong, privity in the first
action, is neither bound nor she adjudica-
claim benefits former liability prior
tion of judgment. summary judgment is reversed.
STRUTZ, TEIGEN, J., and C. ERICK-
STAD, PAULSON, JJ.,
motion, hearing, was denied Judgment trial court. was entered com- mitting peni- the State tentiary, and this taken from denying from the order *3 the motion for new trial. defendant issues on this
The raises two appeal: Insufficiency to sus-
1. of the evidence verdict; tain the and Prejudicial error committed communicating with trial court deliberation, begun coun- his without notice to the defendant or. sel.
Let first us consider the evidence. Was it sufficient to sustain verdict? strenuously asserts
The defendant no penetration there is evidence of proved, most, attempt has an State at Bismarck, Gen., Helgi Johanneson, Atty. rape. to commit Atty., Hoberg, and Gordon O. State’s Na- poleon, plaintiff respondent for State at Let us look the record. of North Dakota. Bear, Bismarck,
Richard B. defend- for complaining posi- The testified witness appellant. ant and tively penetration. that there She was was organ
asked whether the ac- defendant’s her, tually reply entered was: her STRUTZ, Chief Justice. “Yes, it did.” Klein, Delmar D. Logan complain- the district convicted court of The doctor who examined County rape of the crime of in the first de- ing witness was called the defendant. gree. The information which he he the com- He testified that had examined charged tried him with committed o’clock plaining eight witness at about rape degree 7, 1970, approximate- the crime of the first evening June following, rape. manner He ly alleged wit: hours four at the his examination testified that time of “That at the said time the said he vagina her looked and that found normal intercourse defendant have sexual abrasions, swelling and that he found no female, namely; [naming with penetration. no of sexual How- evidence his complaining witness], who was ever, cross-examination, admitted he and who at the of the said in- wife time there had he could state whether tercourse, eighteen under age he had and that not been sexual intercourse years, and that defendant (18) at say except to on the opinion no act, age time of said was over there had he had not found evidence years.” twenty-four (24) penetration. testified He further on the contusions found bruises and rape he returned a verdict of body, and he Thereafter, complainant’s legs and the defend- degree. the first trial; treated her for these. a motion for ant made new
291
relating
prosecu
Our statute
evidence of
and that
State
rape
require
guilt
that the com
tion for
does not
defendant.
A de
innocence of
plaining
witness
corroborated.
therefore
unsupport
jury.
A motion
convicted on the
for new trial on
testimony
grounds
insufficiency
complaining witness.
the evidence
ed
of a
Johnson,
is addressed
the sound
v.
58 N.D.
227 N.W.
discretion of
State
trial court.
us,
before
court’s determination
(1929).
560
the case
Such
testimony
respect
complaining
sufficiency
of the evi
witness
corroborated,
dence will not
It was
be disturbed on
unless
was corroborated.
witness,
example, by
an abuse of discretion is
the defendant’s own
shown. State
Shepard,
Schuchard,
(1938);
68
into
bedroom
walked
N.W.
Smith,
complaining
(N.D.
tempting to close left the grounds insufficiency for a new trial on testimony true that that It is there was no the evidence. complaining forced, the other witness prosecutrix testimony than the her de the The issue raised second necessary proof But is self. of force court on is the trial this eigh the age where the victim is under communicat error in prejudicial committed years. complaining teen Even if the wit the allegedly the outside ing jury, with cooperated ness had the defendant with counsel and his defendant presence the every way, his her act of intercourse with jury them, the to after and without notice would, nevertheless, rape. be 12-30- Sec. record The begun deliberations. had subsec. N.D.C.C. jury had retired the discloses jury The had before it consideration to fpr deliberation, sent word the foreman testimony witness, the the defendant’s bailiff, jury the through the judge, the who testified that the defendant had stat- de as to the be what to informed wanted ed, before the room the vic- entering with expres had meant fendant’s witness tim, going that he her. “make” the on going put make sion “I am The trial defendant. girl,” quoting the further shows record counsel defendant’s stated that one of immediately prosecutrix left the house request was time the present at the bedroom; leaving picked the that she was present, or was not he was made. Whether up by young the took on road man who court sent word record is clear that the the town, they police her to where looked for a bailiff, the jury, through the one, man; they that when could find inquiry jury’s could answer they po went to minister who called the inquired about which aiid that arrangements lice and the sheriff and made to determine. jury was a matter for complaining witness to taken in- requested jury Did the fact hospital. fact made that she meaning expression of an formation complaint properly shown in evidence. used, and allegedly had which supra. Johnson, give, did not information error? reversible constitute fact view of the that the com plaining testimony penetra witness’s as to rule, communica corroborated, all general As a
tion need not be believe we jury, judge and is the evidence sufficient the ver tions sustain take must submitted, carefully testimony after a case has dict. have read the We of, presence open and place find is a conflict and we that there direct to, judge and their or after notice desired to communicate 473, p. jury judge counsel. 89 Trial him. The went into the room § C.J.S. said, evening,” and and if the “Good asked general Dakota rule. North follows jurors agreed Upon on a verdict. North Dakota 29-22-05 of the Section they ing informed that were unable Century provides: Code agree, replied, “I judge will ask you to consider the matter further. Good retired for de- jurors have “After night.” liberation, they be informed desire to cause, arising point of law
on a court, appeal to this the conviction On testimony any about which have This court of the defendant was reversed. they disagreement doubt read are in entry held that the of the trial into they, request, their must them, room there conversa- into the courtroom the be conducted tion error re- with the was reversible custody. Upon officer has them gardless of what that conversation was. brought court, in- their into bench, for a is on the required given formation must not in proceedings room. All presence of, to, or after notice the state’s case, in a criminal than con- other attorney defendant or his coun- attorneys ferences on the with the law sel, they or after have been called.” open should be court. *5 Thus, law, under our communi- whatever bar, judge In the case at the trial place jury takes and the cation leave the was courtroom. Word jury court after the has retired for de- brought by him the officer who had the to liberation, request by jury such as a the to jury custody be jury desired to that the any point arising of law be informed meaning advised as ex- a certain matter, any or on other such com- the case pression testimony. in the The record used open munication must take request discloses that when this was re- with counsel both and the de- for ceived, by the judge the sent word back present, they or at least must brought request jury’s officer the request. jury’s been have notified that the court could not answer the The record in this case includes a state- deter- jurors that the have to court, by disclosing the trial that ment mine matter for the themselves. request received, when such was for the any attempt that it error jury, conclude sent word without We jury meaning court to communicate with the question, trial answer presence and the any expression by any of the the of counsel used witnesses outside defendant, prej- was not jury’s determination. but such error was for the de- rights
udicial to substantial there- trial fendant. motion for new After a case has been submitted properly fore denied. only jury, proper forum for com jury judge munication between the and the for grounds for the motion sufficient No court, open proper is in where a record presented new trial any Any made of conversation had. deny- the trial court the order of in the such communication should made for trial and ing new motion panel, presence jury of the entire counsel of conviction are affirmed. and, sides, prose for both in a criminal
cution, presence in the of the defendant. KELSCH, ERICKSTAD, F. J., and C. Judge, District
The defendant cites the decision of this Murphy, court in the case PAULSON, disquali- deeming himself J., 115 N.W. decided KELSCH, fied, participate; case, did not C. F. jury sent word to the trial Dis- ON Judge of the PETITION FOR District Sixth REHEARING. Judicial
trict, sitting in his stead.
STRUTZ, Chief Justice. TEIGEN, specially). Judge (concurring petition The defendant has filed a for rehearing, pointing out that the trial court think, I do I concur in the result. delay days did not two verdict majori- proper that it for the sentence, required fore passing by as law. ty to conclude “that it was error trial communicate with the court to 29-26-01, Section North Dakota presence outside and the de- counsel Code, Century provides veidict as to fendant” a refusal inform the guilty, appoint court must a time a the trial meant what witness at pronouncing judgment. 29-26 Section expression quoted majority opinion. 02 then goes provide on to that the time jury’s request.does not come within appointed pronounce judgment must be 29-22-05, the mandate contained Section ;i days at least verdict, two N.D.C.C., majority, cited as the long, intends to remain in session so jury’s request did not seek information on not, or, if at as remote a time can be “point of law” nor did seek have * * * reasonably. allowed “any testimony read to them.” requir- request Thus the did not invoke the record in this case discloses procedure ed I set the statute. forth judicial was from another think, circumstances, prop- under the district and case was last communicate, er for case to be tried at term. It also shows bailiff, through grant his refusal to request that the defendant’s counsel did jury’s request. similar to what Situations later time to sentencing, be set for to which occurred here not uncommon in are replied ordinarily, my my opinion, trials and it is based on ex- session, remains it will allow a number *6 perience judge, as a trial that it is unreason- days subsequent pro- to verdict before this burden able useless on nouncing judgment, but this since participants and the at the trial term, last case to be tried at the classifying as error. the failure do so This, pass immediately. sentence Court, Supreme The Kansas in Hammar urges error. gren Montgomery Co., Kan. v. Ward & 172 484, clearly 241 P.2d came to the (1952), 1192 The court advised same conclusion. It held that it was not did intend to remain in session for orally days error for advise court to this two verdict because jury through bailiff that checks was the last case to be It must be tried. his which the asked for after the remembered that was not had started deliberate had not been re district and no further own would have Riley, perform. v. 26 ceived evidence. duties State court (1913), 144 this N.W. 107 pro- held that where sentence has KNUDSON, Judge (concurring special- verdict, days nounced less than two ly)- did presumption that the there is court result, I agree concur but I do not for two not intend to remain in session majority with the in their conclusion that verdict, days after and in the absence request by and the refusal showing the defendant that of the trial days answer the actually two did remain in session for constituted a communication under the stat- sen- verdict, passing of more ute, and do find therefore I time expiration such tence before trial court committed error. was not error.
294 de- object The defendant also asserts that our in this case
The defendant has overruled State such cision without case passing of sentence (1908). Murphy, 17 N.D. N.W. delay. judge was days’ But since the two say opinion, From we we what than his own in a district other sitting facts Murphy applicable lieve is not him business for there was no further case. passing of sen- of this perform, hold that we days with- waiting two comes tence without petition rehearing is denied. provides statutory exception <e th; observed two-day delay must be t such KNUDSON, TEIGEN, ERICKSTAD, remain ot ''if the intends to KELSCH, Judge, JJ., District and C. F. nn long.” .s< so ' ' n clearly pointed out that re n o disquali- PAULSON, session, J., deeming himself intend to remain n KELSCH, participate; F. pass de- fied did not C. .. error to sentence Dis- days Judge of delaying for after District the Sixth :without two Judicial trict, in his sitting stead.