State v. Whiteman

Dakota, Plaintiff North STATE of Respondent, WHITEMAN, Jr., Defendant Appellant. 271.

Cr. Dakota.

Supreme North Court

Sept. 1956.

Rehearing Dec. Denied Fleck, Bismarck, Strutz, & Jansonius appellant. tiary, plea Gen., having H. H. reduced Atty. T. Burgum, R. Leslie degree. Gen., respondent. guilty to murder in the second Atty. Thoresen, Asst.

Thereafter both of defendants moved SATHRE, judgments and the trial court vacate the Justice. respective sentences entered in their cases January On action. is a criminal This pleas and allow them to their of withdraw in filed complaint was 14, a criminal guilty pleas guilty and to enter of not Dawes, of William court justice the Jus- and to defend the The motions actions. County, Dunn in and for the Peace tice of pleas to vacate the of both were defendants the defendants charging Dakota North upon grounds made the that the confessions Mal- Jr., Donald and Whiteman Oscar by upon made and the judg- them which in of murder the crime nourie, jointly with entered, ment and were in- sentences were of 6:30 hours the degree between first the voluntarily made and were obtained 1, January m., p. committed 8:30 and fraud, coercion, deceit, duress, through Dakota, per- County, North in Dunn torture, prejudicial mob violence and other committing in defendants petrated said destroyed acts which the free will said of upon rape commit attempting defendants, per- said acts were years, age of 16 of Starr, girl the a minor petrated upon committed said defend- awith the head a blow on striking her ants the law officers of enforcement died. bottle, blow she which from wine County, Dunn North Dakota on the 9th day January of hearing before 1953. Prior Justice defendants, said Peace, of the each of The court denied trial the motions of Mal- Jr., and Donald Whiteman Oscar both defendants leave for to withdraw their a sworn written and signed nourie pleas guilty of and entered its order ac- they admitted the in confession cordingly. appealed Both defendants were These confessions charged. crime from appeals this court Said said order. January day of on the 10th executed were heard before this court the de- of the before hearing At the Justice cision in the case State v. Whiteman 14, January defendants Peace appears in 67 N.W.2d and the case sworn confes- written and joint a signed appears of State v'. Malnourie in 67 N.W.2d crime as admitted the in which sion 330. This court reversed order justice complaint filed the charged granted district court both cases confession Upon written said court. right the defendants withdraw their attorney County of Dunn state’s Jan- pleas guilty defend the actions charg- an information filed uary against them in district court. jointly with the crime defendants said ing degree. first Thereafter The moved change defendants for a of murder brought before Dunn County venue from which motion both defendants Miller, Judge Dis- granted of the case Harvey was tried in the Hon. J. District, judicial Sixth court of the of the district fourth dis- trict Court Judicial Dakota, trict, Dickinson, County, and on Burleigh North North The at Dakota. jointly both defendants day defendants tried to the court 17th guilty jury pleas jury. murder The separate returned entered hearing finding before said each After the verdicts defendant degree. first manslaughter degree defendant Mal- the first Donald fixed Court District punishment imprisonment life impris- determined sentenced nourie plea penitentiary in the state penitentiary on his onment for state years. fifteen degree. period in the first The defendant murder guilty to appeal. Malnourie did Jr., was sen- Donald Oscar defendant years peniten- Jr., thirty in the state defendant made a tenced trial court defendant Donald Malnourie and that trial. a new motion prejudiced by joint and the would trial be- motion be denying the its order made cause be evidence would introduced which order. appealed said from defendant would not him but against be admissible urged error specifications of In the would competent against his code- following court erred Malnourie; fendant Donald confes- particulars. alleged sions or admissions have been the defendant Malnourie and ad- its abused the trial “1. That mitted in would prejudice motion denying discretion against appellant preju- and that such sepa- defendant dice could not be cured instructions trial. rate of the trial court. in in- erred court That the trial “2. 29-2107, provides Section NDRC 1943 bring they could jury that structing the persons jointly accused of shall crime than offenses of lesser n in verdict jointly be tried and reads as follows: information in state’s charged were degree. in first murder charging “Whenever two or more persons shall jointly be charged any crime, they with not in court erred That the trial “3. shall jointly, be tried subject to the cross-examine defense allowing the to power court, in of the its discretion on matters witnesses state’s special reasons, and for sepa- to order gone on direct ex- had not into state rate trials as to one or more of the amination. defendants, jointly and when tried may in there joint erred be or the trial court several “4. That convic- acquittals, defendant tions or may motion as jury granting on the for a mis-trial determine the facts.” improper questioning grounds of It will be noted under Section 29-2107 State, and that such for the counsel persons jointly accused of crime shall be the defendant prejudicial refusal together subject tried power to the of the Whiteman Oscar Jr. court, in special its discretion and for rea- separate erred in sons to That the trial court order trials “5. as to one or alleged certain more of in evidence the defendants. admitting Oscar of the defendant admissions In the case instant the two defendants ground on the Whiteman Jr. jointly charged were with crime of mur- involuntarily made. were der Starr attempting while jury rape, commit under 12-2712, That the verdict of the Section “6. NDRC clearly against evidence as 1943.

defendant Jr. question first determine is whether erred in or not under the That the court facts in circumstances “7. the case court for the defendant the trial the motion abused granting its discretion Jr., directing denying sepa- defendants’ motion for a Oscar rate trial. a verdict of dismissal bring in the said Oscar White- against as action On the as right sepa- man Jr.” cases C.J.S., rate trials criminal Crimi- Law, 933, pages 217, 218, specifications nal and 219 discuss these § shall We the rule as follows: states stated. the order Jr., privilege such appellant con- “Unless conferred rule, antagonistic statute or court his defense is considered tends that section, robbery jointly- robbery person of one defendants infra this all properly another charged entitled to a severance indicted are right. such We a matter of crimes the same indictment. separate trials quote paragraph Syllabus. under statutes from 22 of law and at common Both thereof, grant or denial declaratory properly charged in same “Persons separate trial de- of a severance indictment with crimes of murder in the rests indicted jointly fendants robbery robbery of person of one which, court, discretion another, jointly alleged to have been may therefor good cause the absence persons, committed all of such properly of its discretion exercise Pen.Code, properly jointly. tried §§ trials, grant and whose separate refuse 954, 1098.” separate trial or sever- of a or denial absence of an upheld To decision ance will the same effect clearly Baa, People shown. 150 P.2d of discretion Cal.2d abuse however, in on an should, passing opinion: quote We from the exercise a severance application for inconsistency grant- “There is no discretion, prevent in- so as to sound ing separate a from a trial defendant arbi- proceed not justice, and should a requiring codefendants while some capriciously. What con- trarily nor 1098 joint with trial others. Section in of discretion abuse an stitutes part: in provides of the Penal Code separate trials severance or denying are ‘When two or defendants more necessarily depends largely offense, any public jointly charged with each in as revealed whole situation misdemeanor, they felony whether or case, by the circumstances particular jointly, the court must be tried unless application the time at as disclosed separate ordering sepa- In order trials. made; and it is not was for severance trials, in discretion rate the court its deny separate to of discretion an abuse may separate trial to one or order a as jointly indicted defendants trials to defendants, joint trial as to a more in no sub- result joint trial will where a others, may any number or order although where injustice, stantial to one be at the defendants tried joint a trial show circumstances trial, number of the others preju- to the substantial operate would trials, sepa- may order a different an abuse of dis- it is dice defendant for rate trial each defendant.’ Under separate him trial. deny cretion to statute, joint contemplated, trial is and rules. statutes “Under separate privilege and a trial is a legislature province of within the People Rocco, right. not a matter of v. authority to * court with * * trial to vest 73, 68, P. 209 285 Cal. sepa- there shall be a whether decide “Furthermore, appear it does not joint- trial of defendants joint rate or appellant prejudiced was upheld indicted, courts have and the ly way by having jointly his case tried regulating the validity of statutes appel- all that of At times with Jones. separate trials joint matter lant had the assistance of his own coun- jointly indicted.” defendants sel, rights carefully guarded, has a statute al- of California state relating solely and evidence to Jones Section 29-2107 which identical most rulings restricted and in- supreme by the court construed has been structions court.” In in numerous decisions. state 802, People case Kaye, Cal.App.2d Likewise Isby, People v. 43 v. case of 879, 405, persons 680, 416, 186 P.2d it was held that Cal.2d 30 the Su- 111 P.2d preme Court California jointly committed murder said: alleged

533 Jury: “Members of Some testi- of discretion abuse not an “It is mony separate during has been trial received grant a demand refuse testimony, ad- to be by you considered de- one damaging because trials fendant but defendant against as to other. one missible lawyers received other, may be the defendants and against the upon cooperated Court have to make this case, incumbent it is then but clear in its you throughout distinct for such evidence to limit the court trial, whom I again now instruct application defendant to the supra, Erno, very connection People careful this v. it is referable. 710; People 272,277, strictly consider such P. ac- 232 195 Cal. 890; cording 234 P. it Perry, rules announced when 195 Cal. 160, 165, Cal.App. received.” Booth, People v. above noted 987. As 236 P. 29-2107, Under NDRC Section forepart recital of the evidence quoted the decisions herein respective opinion, of this defendants’ joint defendant in a criminal action is carefully regard rights separate entitled to a trial a matter joint trial.” preserved throughout their right. separate The granting of a People v. And the recent case such largely cases is discretion within the Salinas, 1954, P.2d Cal.App.2d of the trial depends upon court and circum

931, 933, it held: from apparent stances requires a justice that the ends of “Appellant contends that next separate trial. If a trial court refuses for a denying erred court in his motion grant separate a trial not the refusal will defendant, separate jointly A trial. ‘ set appellate aside it the court unless entitled charged with another “is not is shown there that has abuse been a clear right, separate trial as a matter of to appear discretion. It the does not that the rests and severance appellant, Jr., prejudiced entirely in trial discretion of the the any in way by joint having his tried case Cal.App. People Burton, court. v. 91 ly with Malnourie. counsel had able He 695, 715, 1077; Peo- 2d 205 P.2d guarded who his rights every stage Cal.App.2d 185, ple King, 85 P.2d Any to relating only the trial. evidence any showing 928. In absence of the Malnourie was restricted to Malnourie that the discre- trial court abused its specific proper alone ruling and under tion in will regard, ruling its jury. believe instructions We do not appeal.” be disturbed on that the under evidence and circumstances that trial court case before us the testimony There was at the introduced denying appellant separate erred in the apply trial that would to one of the de- trial. but fendants the not to other. de- counsel, separate fendants had and when next contended trial is that the

testimony given applied to one jury court in the instructing erred defendant but not to the his other counsel than could return verdicts of lesser offenses timely objections would make which were charged information. as defendant, sustained to such in each invariably instance the trial court instructed jury the In his instructions to trial jury wholly disregard statutory judge gave definitions as degree first apply. defendant whom it did in in murder murder In final charge jury degree; manslaughter court the second instructed jury manslaughter degree as the second this matter fol- first lows : degree. degrees, an has and instruction requested different defendant that, reasonably doubt- jury if the jury was is that the effect instruction to the verdicts,— al- proof ful material required as only one two to find indictment, accused legation guilty. degree or

murder first acquitted, must be erroneous.” is reference state of this statutes 389, it Homicide, C.J.S., And § major crime included in lesser offenses states: are as follows: homicide, "On a trial provides 12-2721, NDRC Section re- jury in may and must instruct the that: spect every degree grade or any per- jurors whom before homicide, “The included every lower find may prosecuted son murder offense, is of which degree or offense manslaughter person guilty of such under may accused be convicted circum- according to the facts evidence, whether indictment and the evidence.” disclosed stances requested or not. such an instruction is requisite regard With to the evidence 29-2106 follows: Section con- make instructions sufficient to defendant appears that a degrees, “When it or cerning grades, different public offense committed necessary has has proper, offenses doubt ground reasonable there is variously been or stated that held degrees more two instructions, which of or must, the court in its low- be convicted of the guilty, he can every grade degree cover or of homi- only.” degrees of such est prove cide which the evidence tends to of, show accused or which 12-0606 follows: Section suggests, view reasonable distinguished which there is substantial evidence or “Whenever a crime is convicts naturally jury, suggesting, probable if it degrees, into degree of defendant, guilt; may degrees find the different must guilty. which he must be crime of submitted to the where ren- guilty of is verdict the evidence and circumstances are Whenever a upon pros- against accused such that different a inferences or con- dered the homicide, jury may properly for the must clusions be drawn there- ecution degree degree; determine from as charge find the thereof and to the that a in- punishment to degrees the be on the verdict various of homicide its prescribed possible within the limits unless flicted should made no view justify law.” would of the facts result acquittal a other than conviction or Law, 1289, page C.J.S., In Criminal § * * charged Also, the crime of *. following statement with refer- is the has held or stated that an it instruc- grade reasonable of de- doubt or ence to grade degree tion on a lower or of gree crime: offense should be given, the although evidence, support accused’s proper, of such “It is and under some stat- grade degree, or court, lower is duty the of the uncorrob- it is utes orated, although that, beyond the jury if believes charge the evidence points strongly so guilt doubt that is accused ac- reasonable a highest degree cused the prac- as have a doubt as but reasonable guilty offense, tically exclude they any theory degree of of guilt his the degree, lower benefit that in a the give him the should evidence suggest pre- convict him of lower does absence of doubt meditation, charged it So, duty offense still where is degree. microscope you reference so that can evaluate trial court to instruct the damage is done all crime to it. Un- degrees lower of the theory fortunately, course, we are denied there is reasonable that adjunct help particular or guilt.” this case because of the time between lag charged In the the trial instant case death autopsy and the time the had jury as follows: performed. been findings on that perhaps account aren’t as conclusive “If finds that a defendant as I would like them be. I as- would in the first guilty murder either of sume that as I mentioned death oc- degree de- second murder hours, curred over a number of gree, upon facts depending then due to the she did die fact and the fact by and circumstances disclosed changes that these were found in the Jury, evidence as determined kings, I stated that the cause of death they person guilty of may find such compatible would be exposure. Jury manslaughter. Whenever Certainly exposure produce would any person manslaugh- 'finds picture similar with the available data upon prosecution murder ter presented here, we have as was wheth- must their verdict determine but again only you valid conclusion degree manslaughter er it is in the first could see was that death occurred over degree.” in the second manslaughter a matter particu- of hours. What the is therefore us before lar expo- reason for the death from and the are whether record evidence is, very sure difficult to make out first de- support the verdict of sufficient to autopsy from the other than the find- jury. by the gree manslaughter found ings produced. that have been Does clarify it? Kling, pathologist testi- Dr. Robert state, per- that he had fying for stated “Q. Suppose, Doctor, person that a body Cyn- autopsy upon the an formed was hit on the back head with a report autopsy thia Starr. partly liquid bottle least full of prepared was introduced which he unconscious, you and rendered or what It is not exhibit 9. State’s it, brain, call concussion of the then opinion purpose necessary open, left out in the would that con- report of in detail the doctor’s give dition found harmonize with such following quote autopsy. from We philosophy such a statement —with testimony: A. compatible of fact? would be with that. your conclusion in “Q. What is “Q. if report So that there was as to the cause of such a

your official Well, say thing as a blow on the back I would like to of the A. death? it, person of head that would render the And there is that that first: this unconscious, very or course, be valuable to know was hit wrhat would would it, may you you say I think injury may your call that re the extent here, brain present port concussion brain of with re have been not person sulting unconsciousness? A. when a If because ex- there girl were, course, produced possibility of concussion brain dam- pires with cause, I if blow on the head and as the mean one the in in mind age it, possibility a coma because thinking that dividual is out, exposure, course, why, died of in or then rule it wishes course, the would very findings very important and desirable harmonize is set-up. particular with that actually brain under see that very got Cynthia. They the front seat with could “Q. situation Such couple although had a got of drinks. Whiteman out your diagnosis reasonable wine, ? of the got death car and a bottle of instantaneous was no there , Halliday then drove north' of about That true. A. is Cynthia half a mile. got Malnourie receives then, person if a “Q. So argument into an as to who should drive region in that particularly blow They Halliday, car. then drove back to render skull, would head, that bought wine, some more then drove north any there person unconscious—is such Halliday mile, stopped about half a anat unconsciousness between distinction approach to a farm and Malnourie took AA. brain? concussion They the wheel. then drove south of Halli- produce may may or concussion day about two and one half miles. White- unconsciousness. man car, then get had to out of the Malnourie, Cynthia and Starr drove A. may not? may “Q. or it John off and left Whiteman on the He road. That is correct. said he then walked Halliday back to organs, Now, genital “Q. as to arrived there at about 7:30. He claimed normal; by that they were you said drives, that all of stops these and his walk - find etc.; you vagina, did I mean the of two and one Halliday half miles back to hymen There no hymen? A. were done in the short time between present. minutes to minutes to 7:00 and 7:30. He stated Cynthia that you found was alive and was in that condition “Q. The the car when he girl, standing left on the in on this organs genital road; that he never saw A. thereaft- lacerated? they were say er. laceration. was no There disprove prove or However, that Does “Q. Lesmeister, special Leo deputy sexual been have might not County, there sheriff of Dunn testifying for the No, sir. state, A. 8th, stated January intercourse? that on he had a conversation Whiteman, with Oscar A. been? have there “Q. Could Jr., and that Whiteman stated that he was may not may or could—there There Malnourie, Cynthia Donald Starr and right. been, Starr on the evening January John nothing conclusive story 1953. The told There Lesmeister “Q. genital or- agreement substantial story condition with his about had been there he testified up at the trial whether gans No, sir.” parties incident where he A. claimed the intercourse? drove sexual away and standing left him on the road two own be- in his testified and one-half Halliday. miles south of Les- follows: substantially as half meister further stated that Whiteman told they, Cynthia, him home of he was at Malnourie and On Whiteman were south Demaray, Halliday Halli- Dick some brother-in-law distance, Cynthia got and Donald Donald out of Dakota. North day, the fighting drive; car about who had con- should He a 6:45. 6:30 about there Cynthia would give a drink. Donald about the Malnourie with versation keys, “kept her, car and that he they hitting went and Malnourie with out went He Starr, crying and and she was by Cynthia finally lot”. Donald occupied car ato keys away Cynthia Cynthia the the from got was at they father. and her Starr John put Cynthia only who back the front one seat the she was between because wheel and They in Malnourie Whiteman. Starr license. drove driver’s John more, about six miles Cynthia and Malnourie south and Whiteman and seat back the kept car, Starr. and This was about 4:30 in morning. Donald the got out of the Lesmeister, told Donald Whiteman and until Whiteman Malnourie and slapping her one the car and Otto Halliday into Raash drove south stop came back it. She to to the Big Flat School Flat Big the School House and they south to drove back drove on fight- and forth Cynthia by were area House, Donald and directed White- inter- owing they but to wanted man. and he to darkness ing again her, and unable body. refused to They she locate drove course back Flalliday, Donald her mother. but after daylight tell the same said she would day they with a head went the back of the back to the hit same area cover- then her ed previously, said Whiteman by half full. wine bottle about directed Whiteman. They pair because first pants, dead found a thought that then a

he purse quivered.” pencil, and a shortly out and kind “she stretched thereafter they body Cynthia found the Starr. Mr. that White- further testified Lesmeister Lesmeister testified as regard follows in place about that this took man told him place body where the was found: House; 1,000 Big Flat School feet from “Q. dragged (the then Was it body) and Malnourie that Whiteman where down, having of Whiteman hold body, one had told it face was to be Yes, found? arm, House but A. Big right Flat School along each to the it, place place leave so same we good night were the find a be- did not car, fore. but he could they it back took just they it. left where remember “Q. early morning, The same stated that further Whiteman morning? A. Yes.” two and within back to took Whiteman Halliday and objected miles The or three from

one-half defendants strenuously to Halliday, Mal- he walked back Leo Lesmeister relative to Richardton was driving the statements by nourie said made to him the defend- freight get coun- out ant Oscar They to catch Whiteman contended Jr. try. foregoing are the statements under the decisions of this court in Malnourie, that Oscar testified v. which Lesmeister State 67 N.W.2d evening Whiteman, him in made to Whiteman State 67 N.W.2d by January 1953. statements admissions either defend- made, regardless ant as to when noted should be here that if these by alleged barred reason of the abuse and by made statements were inhuman treatment them at the Big they to Lesmeister were made before Jr. the 9th of Flat on January School House January alleged when the objection defendants to the abuse of the defendants was committed near argued admission of said statements was Big Flat School House. length judge before the trial in chambers Lesmeister further Mr. stated his testi- jury. absence of The trial court early mony morning January objection overruled and Lesmeister’s 10, 1953, he was sitting while in the meeting testimony as statements made Halliday room the fire hall at where Whiteman was admitted in evidence. Jr. jail, had the Oscar Whiteman who was in a jail, cell in the called Lesmeister under consideration and told him he wished talk to him. Lesmeister Malnourie cases cell, by appellant went then into Whiteman’s was whether White- or not cited car; man asked Lesmeister if he had made Malnourie and confessions White- 10, 1953, joint wanted, Lesmeister asked him what he man con- Jr. he, Lesmeister, if January 14, them said had a car fession guilty he could take him body pleas of entered in their district 538 involuntary 717, p. at note and cases cited 17, were January

court on C.J. question 39. In this case the of the result as a and and entered made character the confession to torture threats, abuse, and mistreatment involuntary by voluntary was law whether subjected they were to which passed upon by in and determined had them who enforcement officers court. The con trial evidence was charge. 198 N.W. 927, uary essary ments made January 8th said testimony of meister rily. The statements fore House. dence threats of were ground their other not fore attempt nying their use threats, abuse, reversed the made and several man were cases cases did In The defendant regular We held January jury. January guilty. intimidation statements us is whether said the events 8th and the case pleas supra, on the competent the statements confessions denies We court erred restate used for confessions entered statement made the instant case to introduce any kind and that Whiteman’s motions for leave obtained However 8th January 10th and it not 9th at order of bar the state from have reviewed Lesmeister as to orderly guilty and and him Whiteman on alleged to have taken positively that he made it here. evidence made were State by Malnourie and any purpose at under torture, and the showing made that Lesmeister; properly submitted to January through the our trial. made freely obtained this Court said the circumstances admitting Big district by Whiteman on decision against them Kerns, and pleas pleas and Whiteman enter to Lesmeister There was no contends that 10th, Flat School to withdraw question be- evening accordingly introducing the state- detail but volunta- 50 N.D. pleas in in evi- use of White- threats made place those trial. Jan- Les- nec- they : be- de- supra had allowed threats the confession by the same influences that resulted in of whom untarily given. prisoner it made except for a recitation that it was vol- language of the first physical sion, which, touching statements or confessions or And must be submitted to ed formal document called a confes- charge trary. that, courts, however, mixed son of the trial court as N.W. 380.” dence think that it was to be determined * * * flicting. The State ^[385] confession, becomes “The defendant asserts that influence [67 freely he, where there is a conflict of 1021; v. touching the question filed Some have laid threats, N.W .2d mistreatment. together with him were made still [Numerous citations.] Bennett, 85 N.W. still dominated at the time against physical violence, case State v. however, admissibility him which we do not believe being question of law and fact. We 605], voluntarily coercion Once to be 143 Iowa him and 610, Am.St.Rep. police under the control State v. matter, promises Storms, 113 we said: Malnourie, sign- held is in the exact degree On thus became a having down solely 10, other fact whether subjected and fear of evidence. officerswho January 14,. jury. Malnourie,, given, the the issue Whiteman, 214, the con and one murder by matter signed Many Iowa pleas him, rea- rule evi See No by satisfactory appears is inadmissible unless “A confession contrary. same so well estab- would be voluntary. This rule is true unnecessary plea given cite of the oral district lished They well be support thereof. But see court. could calculated authorities the same result of It is next to have been the contended that the court in- erred in brought allowing about the influences that the defense to cross- 10, voluntary Lynn examine the confession state’s witness Amsden satisfactory 1953, evidence matters and until the state gone had not into pre- appears contrary, are direct transcript examination. The by testimony the point sumed to been induced have at this shows clearly proposed involun- original same influences as the cross-examination was in regard to tary way upon confession.” matters noin touched the direct examination of the state’s wit Braathen, In the recent case of State ness. 202, court 77 N.D. 43 N.W.2d Mr. Heen counsel for defendant Mal- said: nourie was cross-examining Lynn one Ams- upon whether an bearing “Evidence den a witness for the state. This witness voluntarily in- admission was made permitted had been testify, objec- over by may voluntarily be considered by state, tion to some incidents that weight to be determining 9th, occurred on January Big or near the admission. In State v. given to the Flat House, although School no reference Gibson, 284 N.W. N.D. whatsoever had been made thereto on di- Court, Syllabus by we said: rect by examination the state. Mr. Heen “confession”, employ- ''A as the term is asked following question, you “Did see law, acknowledge- in criminal is an ed Malnourie fall to ground being after person express by terms ment by struck Pavlenko?” crime, an while admission guilt his “Mr. Thorsen: I want it understood im- acknowledgement, direct or is an that the state standing objec- wants a plied, of fact or circumstance some tion to this line questioning in itself is insufficient to show defense from a crime, pertinent state’s witness that has but which is guilt of not testified as to of this matter on proof tends in connection examination, direct im- prove guilt. such facts to other proper cross-examination. evi- “‘In order to admissible as objection “The I think Court: action, in a criminal a confes- dence probably good improper cross- voluntarily freely must be sion Why you examination. don’t make him made. j our own witness ? “ admission, amounting ‘An to a going “Mr. Heen: This is to cred- confession, proved need not be ibility, I asking am in each instance freely voluntarily in made or- been ‘Did see’. against be admissible der to ” in a criminal action.’ the accused “The Court: I don’t see how it credibility. affects will I sustain judge instant case the ruled In the objection.” whether question as to the state- that the Jr., testimony sought counsel ments made, voluntarily elicit from this witness Lesmeister on cross-examina- fact to be determined reference alleged tion had mistreatment of the defendant Malnourie and the facts and circumstances jury. Under appellant the rule case and laid down instant Whiteman. had not been re- ruling cited the of the trial ferred cases direct examination state. We fail to see that was correct. such immunity, duress, threats, promise of witness. credibility of the the affect could whatsoever. by the reason inducement excluded properly was therefore It evening the The affidavit recites that on trial court. 1, 1953, January point outside at the that specification driving next Halliday the “Y” he was known as motion the granting car; in not stopped erred White- court the that he and that be mis-trial for a he, Malnourie out, stepped the defendant Malnourie man by state’s questioning Whiteman; improper cause of that took off and left John that from the appears seat; riding counsel. in back that Starr was body of shown was Cynthia in- when Malnourie was alive and was not Starr her who killed was asked he anyway Starr jured in at that time. He further cross-examination On “I did”. state- he stated that he refused to make said he whether as to questioned let happened he was after he ment as to what Cyn killed he that car, except statement his that retracted out of the Whiteman the record: quote from We thia Starr. crime Whiteman was innocent of the was which he convicted. you then, say when Now, “Q. you into Halliday they took got back testimony behalf dur- In his in his own it? you retracted

Malloy’s office positively ing the trial of the case he stated Yes, sir. A. anything of what that he did not remember Whiteman, happened together after he you sign- where “Q. And isn’t Demaray Cynthia and Starr left the John confession— ed a Halliday shortly before 7 o’clock home at the defendant asked of question was January thing he claimed 1953. The first prej- appeal. No he did not walking was that he was he remembered re- could appellant Whiteman udice to lights towards some discovered therefrom. sult lights city Richardton. were testimony was in direct conflict with His brief that the in his argues Appellant They made in his affidavit. statements motions denying his erred trial court not both be Either his testi- could true. grounds: two made on mistrial false, mony false or the affidavit was was report press contained worthy That of belief and neither would the trial had before proceedings by other credible absence of corroboration may have come same that the chambers and testimony. prej- jury knowledge of appellant. udice of The final for consid eration is whether the evidence sufficient day the trial while opening on That support finding the verdict of present the defendants two jurors were defendant Oscar Whiteman Jr. handcuffed. into court brought degree manslaughter. There is a of first testimony sharp conflict between However, in- grounds these error, Whiteman and the of Lesmeister specifications are cluded January him as to what told be considered for us and cannot before 10th, 1953. There were several 8th and wit appeal. first time testified that nesses who Halliday before 7 o’clock in appellant Oscar Whiteman Jr. Jr. January evening of 1953. Flora in the trial court for Demar- motion his making ay Oscar sup a sister of presented an affidavit testified that newa her house at 7 o’clock codefendant executed port thereof evening It recites and that at that it Malnourie. Donald out, Malnourie called him without Donald by the affiant time voluntarily There is in the certain other testi- o’clock record was back before that Oscar story mony sis- Another which is corroborative evening and went to show. that Whiteman told Lesmeister. Mr. Gils- and Willis Whiteman ter Lois Whiteman similar'testimony. physician surgeon dorf a practicing gave a brother of Oscar Dickinson, Dakota, Klundt, Occident from agent for the North was called William on the as a Halliday testified that witness for state. He examined Lumber Co. at 1, body Cynthia 7:30 the January 1953 at about the ex- evening of Starr before m., by performed p. Kling, the road one amination driving he was Dr. Halliday primary and there what is known or first south of as one-half miles walking- 11, autopsy passed January at he Dunn Center on Jr. Halliday. Hol- Agnes body 1953. As he Mrs. to the condition north towards home testified among things en testified that at other was her follows: she January Halliday evening “Q. it, a body kind What was 1953; eve- twenty at minutes to that that man, woman, body child? It was the went said ning she to a show. She body of a young girl. Indian was Os- show before o’clock and started hard, firm, rigor a combination mor- when show car Whiteman was there Jr. tis, body very freezing, the cold right behind sitting that he started touch; there was no evidence of over. stayed until the show was her he bones; multiple broken there were scratches, may say we most Olson, un- hand M. A. bruises— On the other prominent on the lower extremities— also Center who was dertaker of Dunn is, feet, knees, thighs; these state county testifying for the coroner multiple, scratches were I couldn’t Halliday stated that he was many, running estimate how in various that time he saw 1953 and that at directions; there were also some Jr., Donald defendant Oscar Whiteman apparent scratches on the sides of the Malnourie, talked to both thighs; the abdomen and chest was not them on He also talked with them. Jan- informative; there was a little to be 8th, Mr. Lesmeister uary that time abnormal; appeared seen there that them, is the four also was with —that abrasions, say, there was some as we Lesmeister, Olson, together, scratching about the arms.” them, asked Malnourie. At that time Olson killed if Whiteman and Malnourie According to Lesmeister’s Cynthia Starr) and (referring girl Whiteman told him that Malnourie and he “Donald killed said that dragged body face down the ditch. girl.” limbs, feet, The lower is the knees and uncovered; hips dragging them over by Olson was then asked counsel: rough of the ditch surface would nat- “Q. say Did Malnourie anything? urally cause multiple scratches and bruises A. Then asked I Malnourie and he as testified to Dr. Gilsdorf. The con- ‘yes, said I girl’ killed the ”. body dition of the as found Dr. Gilsdorf would therefore leave a strong inference Olson was further asked counsel: that Whiteman did make the statements “Q. You are sure this was on the testified to par- Lesmeister and that he January, 8th of 1953? A. Yes.” ticipated in dragging body Cynthia Starr ditch. during Olson stated further that this con- Malnourie, versation with Whiteman and There is also in the record state’s exhibit Whiteman said that hit which was “Malnourie had admitted in evidence without objection by times her several and that he hit her either defendant. purports signed by a wine bottle.” to be statement the defendants, When exhibit was offered and Donald Oscar Whiteman Jr. fol- respon- by the the trial state from exonerating Starr John lowing inquiry: Starr sibility the death follows: any objection “The Is there Court: 11 in receiving of exhibit evi- is in the certify that Star “We John ? dence committed. we two the crime clear to intoxicated heavyly under John objection. No “Mr. Strutz: it whatever. liquor no hand and has objection. “Mr. No “Sign Keen: Whiteman "Oscar Jr. “The will be re- Court: exhibit Malnourie. “Donald ceived”. “Witness with On state cross-examination Pavlenko “Jack reference to exhibit Star” “John testified as follows: Pavlenko, Dunn then sheriff Jack state, Whiteman, you plain- stated I County, “Mr. show testifying 11; he January, your signature? had tiff’s exhibit is 12th of from the County jail Oscar signed After was I it. custody in Dunn A. I beaten and Jr., Malnourie Whiteman Donald John “Q. you Where were when under com- Starr, he held them signed Manning jail it? A. peace. justice plaints with the filed 14th of 13th or the “Q. That either what time was A. About that? Jan- Jr., Donald uary 1953, I don’t remember sitting Starr were Malnourie John “Q. quite Was it a while after the entrance table at around the January? 10th of re- A. I don’t first jail was County and this exhibit Dunn member. Starr; time him at that handed to John “Q. A. You don’t remember that? it he had seen the first time was that this Yes. Whiteman and Both unsigned. and it was it; they telling me about “was your “Q. signature is A. But this ? any- did not Starr me that

told Yes, John my signature. I that is After was whatsoever, the crime with thing do I it.” signed beaten sleeping of the time most had been that he he did In the course of this examination laying on was intoxicated he or was so beaten, he he not state when nor did anything just didn’t have the seat any person who beaten him. He name had me it, they get wanted do with anything remember seemed could not get if him see I could this statement memory complete lapse have had a released.” any exhibit in connection with matter 11, except it. signed that he The exhibit positively that this was stated Pavlenko objection was admitted evidence without seen it and that he had he had time the first by counsel. writing of that ex- do with nothing to There a direct conflict between if wished to them He asked hibit. testimony to what White- presence, of Lesmeister as it they signed in his sign it morning him on as man told signed Starr then and he and John testimony of Whiteman signatures. He de- then their witnesses According his own behalf. Attorney exhibit to the State’s livered Lesmeister’s County. Dunn 23-0629, after classifies dead Section NDRC 1943 Starr thought wine misde- violations of 23-0607 as Section by Malnourie she was struck : “she stretch- meanors and is as follows bottle, blow because after ques- quivered.” ed out kind “Penalty Violating Provisions the evi- upon record presented tion Relating to Dissections and General dence is whether Whiteman Penalty. as found degree first manslaughter jury. “Every person pro- who violates chapter vision of relative manslaughter “Homicide dissection of be- dead bodies of human cases: following degree first ings, procures to be who makes or without a perpetrated “1. When body dissection of the person by death design to effect authority being except by human of a commission engaged while pursuance permission- law or in of a misdemeanor; given provision in accordance with the chapter, of this misde- guilty is of a without a de- perpetrated When “2. person Every meanor. who violates death; in a heat sign effect any provision chapter is of this which unusual passion, cruel and but in a specifically a misde- designated as dangerous manner or means meanor or of which for the violation under weapon, is committed unless it specifically pro- penalty another is not ex- as constitute such circumstances punishable by vided is fine of less homicide; and justifiable or cusable one than five dollars nor more than unnecessarily perpetrated When “3. hundred dollars.” attempt resisting an while either Under 12-2717 subsection of Section aft- crime or person killed commit a manslaughter homicide in the first de- is attempt have failed.” shall ter such perpetrated design gree “When without a Cyn- that actually believed If Whiteman person engaged to effect death Malnourie dead when Starr was thia commission If White- of a misdemeanor”. car, even body from the her he removed dead, Cynthia man believed that Starr time, there alive at she was though body participated removing and if he her her part effect on his design no could be leaving from the car in the roadside guilty of he nevertheless was But death. ditch he was of a misdemeanor un- 23-0607 under Sections offense a criminal testimony of der section 23-0607. From the 23-0629, These sections NDRC 1943. Cynthia Starr pathologist, Kling, Dr. Chapter North 23-06 of the parts of are exposure period died from over a hours. the sub- Code of Revised Dakota Although thought Whiteman she was dead Custody Dead. ject to Care car, when she was removed from the if she actually time, was alive at that her death applicable is far as so 23-0607 Section was the result of the commission of a mis- follows: as by Whiteman, demeanor and he would be any person death body whose “The guilty manslaughter under subsection interred, not be state shall occurs supra. of section 12-2717 cremated, tomb, a vault or deposited jury probably disposed of, a burial- believed that until Les- otherivise testimony properly meister’s as to been is- what have permit shall transit true; told him of vital statistics registrar by the sued participated both in which the Malnourie removing district registration from car and Starr leaving her occurred.” death improper ditch; when The Court she alive cross-examination”. body ex- objection ground she died from sustained the on the left in the ditch improper body was found posure. that the cross-examination. counsel The fact told going spot where Whiteman stated: then “This at or near strong credibility. leaves a instance I each asking Lesmeister it could be found am ” actually knew where ‘did ? see that he see’ The Court: “I don’t inference evening credibility. on the body was left how it affects sustain I will statements objection”. he made 1st The witness had not Lesmeister. seen testified time stated had or that he had ground. Malnourie fall to the Whether lengthy carefully We considered “yes” question answered the either The evi- all the evidence. record “no”, credibility. it could be no test of his presented questions conflicting dence is Nor could answer to the properly submitted fact grounds impeachment of the witness defendants both jury. The found because no im- ground had been laid for degree. manslaughter the first guilty of peachment. objection sup- is sufficient to We think the evidence sought properly to be sustained elicited was port verdict. ground on the that it could not affect denying the trial court Furthermore, The order of credibility of the witness. appellant Oscar Whiteman motion of herein, opinion we said in the testi- is affirmed. for new trial mony sought which counsel elicit from Jr.

the witness Amsden had reference to mis- treatment of was not a Malnourie who MORRIS, J., BURKE, C. JOHN- party appeal. this GRIMSON, JJ., concur. SON and opin-

The defendant contends if the permitted unduly ion herein is to stand Rehearing. Petition for On right restricts the of cross-examination of SATHRE, Judge. state’s witnesses a crim- defendant in inal case. No restriction of rule said presented has defendant intended, employed nor does the language All of the rehearing. petition lengthy justify such inference. Defendant cites the fully considered points raised Hazlett, 490, cases of State v. 14 N.D. upholding de opinion disposed inof 617, Schmidt, N.W. State v. 72 N.D. points One conviction. fendant’s Bossart, 10 N.W.2d and State v. that it error petition raised in the support N.D. N.W. his con- court, objection by part of the tention. testimony state, certain exclude wit the state’s elicited from sought to be carefully considered We these cases. all cross-examination Amsden on ness opinion in the language There is no original forth in detail is set legitimately case that can be con- instant coun asked The witness was opinion. strued restrict rule as announced “Did see Malnourie for Malnourie: sel cited. in the cases being after ground struck fall Rehearing denied. attorney objected state’s Pavlenko?” ground that the on the BURKE, J., JOHNSON, of this C. GRIM- not testified “as witness examination, MORRIS, JJ., concur. direct it SON matter

Case Details

Case Name: State v. Whiteman

Court Name: North Dakota Supreme Court

Date Published: Sep 27, 1956

Citation: 79 N.W.2d 528

Docket Number: Cr. 271

Court Abbreviation: N.D.