163 N.W. 810 | N.D. | 1917
Concurrence Opinion
I concur in a reversal and in the foregoing opinion, but express no opinion on whether the rule contended for by appellant’s counsel and discussed in that portion of the opinion covered by paragraph 2 of the syllabus is correct or not.
Lead Opinion
(after stating the facts as above). It is first alleged that the trial court erred in overruling an objection to the introduction ■of evidence under the information, on the ground that the latter did' not state a cause of action.
The defendant and appellant asserts that “the information is grossly unfair and vicious. We are in effect charged with pigging, with a penalty of perjury if convicted. We are therein accused of false swearing in half a dozen instances, whereof there was no testimony produced. And to cap the climax, the information merely (if carefully read) •charges that the ‘said Peter Scott did then and there, as aforesaid, knowingly, falsely, and corruptly commit perjury.’ This, to our minds, states a conclusion and is a nullity as a pleading.”
There is no merit in this objection. The information may have contained more than was necessary, and may have been unfair and vicious. The objection, however, was that it did not state a cause of action, and this is the only matter that we have to consider. There is much more in the information than the statement of the matters of inducement in relation to the prosecution for the crime of keeping and maintaining a common nuisance. It is stated that material questions were asked, that each of these questions was answered, “No,” and that the truth was opposite to that testified to, and that the said Peter Scott had knowledge of this fact. It also alleges that, in swearing to these facts, the said Peter Scott was knowingly, and falsely swearing to an untruth. It then alleges that in so swearing the said Peter Scott wilfully, unlawfully feloniously, knowingly, falsely, and corruptly committed perjury contrary to the statute.
Nor is there any duplicity in the information. There is no attempt to charge the crime of maintaining a common nuisance and to obtain punishment therefor, but merely a charge that in a prosecution for such crime the false statements were made. It, too> seems to us that the statements made were in relation to material matters.
The next objection is that the court erred in overruling the objection of the defendant and appellant to the following question:
Q. You may produce such shorthand notes in the trial of State of
The objection was that such testimony was incompetent, irrelevant, and immaterial; no foundation laid.
The examination which led up to the question was as follows:
“Q.. Did you in the month of January, or January 28, 19Í6, act as official stenographer for the county court, Ward county, North Dakota ?
A. Yes, sir.
Q. As such official stenographer did you take the testimony in the case of North Dakota v. Peter Scott, the defendant?
A. Yes, sir.
Q. In the trial of that action on January 28, 1916, did you as such official stenographer of the county court, Ward county, North Dakota, take the testimony of Peter Scott, who is the defendant in this case?
A. Yes, sir.
Q. Are you at this time able to read the testimony or from your shorthand notes, the testimony given by Peter Scott, in the trial of the case of State of North Dakota v. Peter Scott, as given on January 28, 1916, in the county court of Ward county, North Dakota?
A. Yes, sir.
Counsel for appellant contends that the rule now generally adopted is that, before the stenographer will be allowed to testify from his notes, rather than from his memory of the testimony, or from his memory as refreshed by such notes, that he must be willing to swear that he has such confidence in his notes that he will swear that the defendant testified as therein disclosed; that he must be willing to swear that the witness said so and so, because the notes so read, and he can swear that the notes are accurate. In other words that, if the stenographer bases his answers to the questions, “Did the witness testify
This we believe to be the correct rule. Yet we believe that the witness in the case at bar practically met these requirements. He testified that he correctly wrote in shorthand the testimony given by Peter Scott; that the notes he read from were the notes taken at the trial, and that he was “able to read the testimony from his shorthand notes given by Peter Scott in the trial of the case of State of North Dakota v. Peter Scott as given on January 28, 1916.” He, it is true, did not say that the notes had not been changed. He did say, however, that they were correctly taken, and he did say that in reading from said notes he could read the testimony “as given on January 28, 1916.” This we believe meets all of the requirements of the rule.
It is next urged that the trial court erred in instructing the jury, and violated the plain provisions of § 10822 of the Compiled Laws of 1913, and assumed to pass upon matters of fact. It is claimed that he erred in charging the jury as a matter of law that the clerk of the county court of Ward county is a competent and proper person to administer an oath to a witness in any criminal action, and also in charging them that “the matters hereinbefore set forth in the questions alleged to have been asked the defendant are matters which were material to the issues in the case then being tried in county court.”
There was certainly no error in the charge as to the competency of the clerk of the county court. Section 7936 of the Compiled Laws of 1913 names, among other denominational presumptions, the presumption (14) that a person acting in a public office was regularly appointed to it.
Whether the clerk of a county court is competent to administer an oath is a question of law. State v. Clough, 111 Iowa, 714, 83 N. W. 728.
The materiality of the questions asked on the former trial, and of the answers given thereto, were also questions of law for the court. Cothran v. State, 39 Miss. 541; State v. Caywood, 96 Iowa, 367, 65 N. W. 385; State v. Swafford, 98 Iowa, 362, 67 N. W. 284; 30 Cyc. 1456.
We believe, however, that error was committed in tbe case, and that tbe trial court erred in excluding tbe testimony of Mrs. Smith, tbe housekeeper, which tended to show bias upon the part of tbe witness Eranzen against tbe defendant. Tbe man Eranzen was tbe principal witness in tbe ease. He bad been asked whether be bad been fired out of Scott’s bouse because be bad given a party whereat men and women bad been drinking beer. He hesitated and said that be could not remember tbe occurrence. He was then asked whether, when Mrs. Smith came home, she did not find him in tbe bouse with one or two other men and a couple of girls sitting around a keg of beer, and be answered, “No, sir.” He was then asked, if immediately thereafter be did not come and make complaint in tbe case on trial, to which he again answered “No.” Mrs. Smith was later called by tbe defendant to contradict Eranzen’s testimony, and was asked, “While Dave Franzen was in your bouse, did you come there one evening and find him there with some other people?” An objection was made to this question, and it was sustained. She was again asked, “Q. Does David Eranzen owe you some money?” And an objection was again sustained. In this we think tbe court erred. Eranzen, as we have before stated, was a material witness, and tbe evidence showed that be bad been boarding at tbe bouse of tbe defendant, and tbe defendant sought to discredit the witnesses of tbe state by proof that the prosecution was merely spite work, and bad been instituted by tbe man Eranzen because be was incensed with tbe plaintiff on account of being turned out of bis bouse and being asked for tbe payment of a bill. “ Tt is always competent to show that a witness is hostile to tbe party against
This evidence we believe to have been competent, and its exclusion under the circumstances-of the case to have been prejudicial error.
The judgment of -the District Court is reversed and a new trial ordered.
