126 N.W. 1023 | N.D. | 1910
Lead Opinion
Appellant was convicted in the district court of Burleigh county of the crime of escaping from prison. He thereafter moved for a new trial and in arrest of judgment, which motions were denied, and he has appealed from the judgment of conviction and from the orders denying such motions.
' Numerous alleged errors are assigned in appellant’s brief, but it will be unnecessary to notice them all in detail. Prior to noticing the various assignments of error, we will briefly refer to the facts.
Appellant, at the time of the alleged offense, was serving a term in the penitentiary pursuant to a judgment of the district court of Grand Forks county. He and others had been working in a hay field connected with the penitentiary grounds during the day under the supervision of one of the penitentiary guards, and, in the evening, as the guard and others were leaving such field to return. to such penitentiary, appellant and another were ordered by the guard to remain in the field for a short time for the purpose of raking up a little hay, after which they were to follow the guard to the penitentiary. Instead of doing as thus directed, they ran away, and were thereafter captured some distance away.
It is claimed, first, that the trial court erred in denying defendant’s motion made at the close of the state’s case to advise a verdict of acquittal, the contention being that the state had failed to establish its case by showing that the escape was accomplished by means of fraud as alleged. A sufficient answer to such contention is that error cannot be predicated upon such a ruling. Section 10017, Kevised Code, which is the same as § 1118 of the Penal Code of California, provides : “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice,” nor can the court, for any cause, prevent the jury from giv
In People v. Lewis, Temple, J., in delivering the opinion of the court said: “I think no exception is authorized to a refusal of the •court to give such advice. Had it been given, the jury would not be bound to obey it. If the defense was satisfied that there was a total lack of evidence upon some essential issue, it could have submitted the ease upon the evidence of the prosecution. But, as it did not do so, it was proper for the court on just terms to allow the defect to be supplied at any time before the final submission of the case.”
In People v. Daniels, supra, it was held that “the obvious effect of this provision of the Penal Code is to take from the court the power to determine, as a matter of law, at the close of the evidence for the prosecution, that the evidence is insufficient.”
We do not overlook the fact that in the later case of People v. Ward, 145 Cal. 736, 79 Pac. 448, the rule announced in People v. Lewis, supra, was disapproved. The decision is, however, by a divided court; but two of the judges concurred generally with the writer of the opinion, while Judge Angellotti, MeParland, and Van Dyke merely concurred in the judgment, and Shaw, J., dissented. We ■deem the rule announced by Temple, J., in People v. Lewis, both sound and supported by the weight of authority. It is entirely clear that under the provisions of § 10017, Bev. Codes 1905, the court is powerless to take the case from the jury for any cause. “It may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” In the light of this statutory language, it would seem plain that error cannot be predicated upon such adverse ruling. By said statute the legislature has vested in the court the power, in its discretion, to advise an acquittal, but no legal duty to give such advice is thereby imposed. Hence, error cannot be assigned upon a refusal to so advise the jury. The following authorities lend support to these views: McCray v. State, 45 Fla. 80, 34 So. 5; Goldman v.
In McGray v. State it was said: “While the trial judge would have the right, after all the evidence in a criminal case had been submitted, if he was clearly satisfied that all of said evidence would not warrant or support a verdict of guilty, to instruct the jury to acquit, this is a matter resting entirely within the discretion of the trial judge, and no error can be predicated upon his failure or refusal so to do.”
From the opinion in Goldman v. State we quote as follows: “The second exception, which we shall consider with the first, was taken to the refusal of the court to instruct the jury to render a verdict of not guilty as to John Murphy, on the ground that the evidence was insufficient to convict him. Now, it is too well established in this state to be seriously questioned that cin the trial of the criminal cases the jury shall be the judges of law as well as of fact’ . . . (Citing numerous cases). In all of these cases it was held that a jury would not be bound by any instructions given by the court, but could disregard them. The court may, in its discretion, advise the jury as to the law and legal effect of the evidence, but is not bound to do so, and, being a matter entirely within its discretion, its refusal to do so cannot be reviewed by this court.”
In State v. Lynn defendant asked the court, at the conclusion of the state’s evidence, to instruct the jury to acquit the defendant, and in refusing an exception to an adverse ruling the court said: “You cannot note an exception to this. . ... You can reach this in another way. When we come to charge the jury, you can then ask the court to direct the jury to return a verdict of not guilty. Then you can except properly. But this is not the place nor the time.”
In State v. Brown, supra, we find the following language: “The seventh cause for reversal is that the trial court refused to direct a verdict for the defendant, notwithstanding a motion was made therefor. The direction of a verdict in a criminal case is a matter resting in the discretion of the court, and the refusal of the court to so direct is not reviewable on error.”
It is next contended that the court erred in denying defendant’s motion for a new trial. Counsel for appellant, in support of his con
In his brief counsel for appellant has stated numerous abstract propositions of law, citing authorities in support thereof, but he fails to point out whether they are applicable to the state of the record on this appeal.
No prejudicial error having been called to our attention, the judgment and orders appealed from are affirmed.
Dissenting Opinion
(dissenting). The defendant -was prosecuted under § 8678, Revised Codes 1905, the text of which is as follows: “Every person who, being confined in the penitentiary or other prison, or being in the lawful custody of an officer or other person, by force or fraud escapes from such prison or custody, is guilty of a felony,” etc. Upon the trial the only evidence introduced in any manner bearing upon the means by which the escape was effected is that of the warden of the state penitentiary and of the defendant himself. The warden testified: “I saw the defendant, after the noon hour, go out from the penitentiary in charge of a guard by the name of Chas. Warner. He was sent out to work in the hay field. The rules of the penitentiary are-that the men working in the field are to start to return to
At the close of the testimony of the State, the defendant moved the court “to advise the jury to return a verdict of not guilty in this case, for the reason that the State has wholly failed to show that any crime has been committed; has entirely failed to make out a case against this defendant.” This motion was denied by the court, an exception taken, and the ruling assigned as error in the statement of the case'and upon the brief of defendant’s counsel. A motion for a new trial was afterward made upon the ground, among others, “that the verdict of the jury is contrary to law and clearly against the evidence.” The motion for a new trial was denied by the court, and its ruling in this particular is also in the same manner assigned as error.
While under rule 14 “such errors as are merely assigned and not supported in the body of the brief by reasons or authoritiees will be deemed to have been abandoned,” I do not think such rule should apply to a criminal case, in which the defendant cannot be presumed to have waived any substantial right, and in which he urges upon the attention of this court, as in this case, that the evidence introduced by the State is insufficient to support a conviction of the offense charged. A simple examination of the evidence, without argument or citation of authority, is all that is necessary to satisfy an impartial mind that there is not even slight evidence of an essential element of the public
In my opinion the point of the insufficiency of this evidence to support a verdict was brought to the attention of the trial court by the motion made at the close of the State’s case and by defendant’s motion for a new trial, and cannot be disregarded on appeal. I cannot agree with that portion of the majority opinion which holds that error cannot be predicated upon the refusal of a trial court in a criminal case to advise a jury to render a verdict of not guilty.
It is true that the court is not authorized to direct the jury to find in the defendant’s favor as in civil cases, or to compel the jury to so find if it refuses to follow the court’s advice. It is, however, none the less the duty of the court to so advise the jury if at the close of the testimony for the prosecution it appears that the evidence introduced by the State does not show, prima facie at least, the essential-elements of a public offense. The California cases cited in the majority opinion not only do not sustain the holding that an exception cannot be predicated upon the refusal of a court to advise' a verdict of not guilty when the evidence is insufficient to warrant a conviction, but expressly disclaim such holding. In the case of People v. Lewis, 124 Cal. 551, 45 L.R.A. 783, 57 Pac. 470, it is plainly indicated
In a criminal case in which, as in this, the evidence is so plainly insufficient to show the necessary elements of a public offense, and the point is presented as it is in accordance with the rules of a well-settled practice, I think there should be no hesitation in reversing the judgment of conviction even though appellant’s counsel may not, in some technical particulars, have complied with the letter of the rules of this court.