82 N.W. 738 | N.D. | 1900
Lead Opinion
The defendant in this action was found guilty of the crime of robbery in the first degree, and was sentenced to a term of 25 years in the penitentiary at Bismarck. A motion for a new trial made in defendant’s behalf was denied by the District Court, and the case is brought to this court for review.
Two errors are alleged as occurring at the trial: Counsel claim that the trial court erred in denying a motion to postpone the trial from the December term of the District Court, 1899, until the June term, 1900; and, secondly, contend that certain instructions given to the jury, and hereafter referred to, were erroneous and prejudicial to the substantial rights of the defendant.
The part of the record necessary to consider shows that the information against the defendant was filed by the state’s attorney on December 11, 1899, and on that day defendant was arraigned. It then appeared that defendant was financially unable to employ counsel, whereupon one of the defendant’s counsel in this court (A. P. Paulson, Esq.) was appointed by the District Court to defend the accused, as his attorney in this action. Defendant was given one day to plead to the information, and on the following day, December 12th was brought into court, and then entered a plea of not guilty, and was thereafter remanded to 'the custody of the sheriff. On December 15, 1899, the case was called for trial, whereupon a motion was made in defendant’s behalf to postpone the trial until the next term of the court, which was to convene in June, 1900. This motion, as finally presented on the 16th of December, was made in writing, and was based upon certain affidavits and exhibits, which are as follows: First, defendant’s own affidavit, which refers to another affidavit made by certain citizens of St. Louis county, Mo.,
The question presented for determination is whether, under the circumstances of the case, and upon the showing made by defendant’s
I might add here, although not strictly pertinent to the grounds upon which I place my ruling, that in my judgment the basis for the motion for a continuance was insufficient in matter of substance. If the defendant was in fact in St. Louis bounty, Mo., on the day the offense was charged to have been committed, that fact could and should have been stated in defendant’s own affidavit filed with the motion. It was not so stated. Defendant contented himself with the averment that he expected to establish that decisive fact by the affidavit of certain nonresidents who were named by him in his affidavit, and whose affidavits were attached to, and made a part of, defendant’s intended affidavit. But, when the affidavits of such nonresidents are scrutinized, it appears that they fail wholly to show an alibi. They do not state in terms, or by necessary intendment, that the defendant was in the State of Missouri on the day the offense is alleged to have been committed, viz: September 25, 1895. They simply declare, in effect, that the defendant was in St. Louis county, Mo., on the 14th, and before and after the 14th day of September, 1895. This may have been strictly true,
One other point remains for brief consideration. It appears that the trial court, in instructing the jury, by an obvious inadvertence, referred to the date of the commission of the offense charged as occurring on September 25, 1899, whereas the true date, as charged, was four years prior thereto, viz: September 25, 1895. This erroneous reference to the date of the offense was repeated in the charge, and it is likewise true that the court more than once in its instructions referred to such date correctly, viz: as being September 25, 1895. We have examined the record with care, and find that the same is replete with undisputed testimony to the effect that the robbery in question was done on the 25th day of September, 1895, the day alleged in the information, an’d there is no pretense that the same was done at any other date or time. The jury found defendant guilty as charged, and this also shows that they found that the defendant committed the act in the year 1895. Under all the circumstances of the case, it is perfectly obvious to us that the erroneous allusion to the date of the offense could not and did not operate to create confusion in the minds of the jury as to the time of the commission of the offense. It is true, as counsel urge, that the daté of the commission of the offense charged is peculiarly
Concurrence Opinion
I concur in the disposition of the case made by the opinion written by Justice Wallin, but, upon the matter of the-refusal of the continuance, I base my concurrence upon the insufficiency of the affidavit upon which the continuance was asked. That affidavit fails to state as a fact that the defendant was not in Barnes county, N. D., on the date the crime is alleged to have been committed, or that defendant was in the state of Missouri on that day. It states generally that defendant expects to prove by certain witnesses that he was in Missouri on that date. • That is affiant’s conclusion. The affidavit does not state to what facts the witnesses will testify, nor does it state that the matters to which they will testify are true, or that the matter which he expects to prove by them is true. Everything stated in the affidavit might be literally true, and yet justice not require a continuance.
Concurrence Opinion
I concur in the affirmance of the judgment, but limit my concurrence expressly to the insufficiency of the affidavit for continuance, in the particulars mentioned in the concurring opinion of Bartholomew, C. J.