State v. Glass

CheistiaNSON, J.

The defendant was convicted of the crime of murder in the second degree in the district court of Bowman county *629 upon a change of venue from Billings county, and sentenced to twenty-five years’ imprisonment for the murder of one Thomas Corcoran. After the return of the 'verdict, and before sentence was pronounced, defendant’s counsel made a motion for a new trial, which was denied. Judgment was pronounced pursuant to the verdict, and this appeal is taken from such judgment.

The only errors urged by appellant for a reversal relate to certain rulings made by the trial court during the introduction of evidence; failure to give more specific instructions upon certain propositions of law, namely, circumstantial evidence, corroboration of an accomplice, and an alibi; and the insufficiency of the evidence to sustain the verdict.

The trial court submitted a written charge, and no requests were made for any further or additional instructions, nor were any exceptions taken to any part of the charge as given. In the motion for new trial, the only reasons urged are: (1) That during the trial of the action the jurors were permitted to go at large, and were not confined in the custody of bailiffs, and that, at that time, there were present a large number of witnesses and other persons who were hostile to the defendant in the court room, hotels, restaurants, and other places where the jurors necessarily had to go, and that a great deal of bitterness existed against the defendant among the people where he was being tried; and (2) that during his argument to the jury, one of the attorneys for the prosecution made certain statements indicating that the defendant and one Thomas Carberry, the principal witness for the state, were accomplices. These facts were asserted upon the affidavit of T. D. Casey, the attorney for the defendant, and no other affidavits or evidence of any kind submitted in support of said motion for a new 'trial. In opposition to said motion the state submitted the affidavits of one of the attorneys for the prosecution, who denies making the statement referred to; the affidavit of the presiding judge, who states “that when the jury in said action was impaneled, the attorneys for the state and T. D. Casey, attorney for the defendant, in open court, 'requested the judge not to put the jurors in said action in custody of bailiffs, but to permit them to separate, for the reason that there were no adequate quarters available for the lodging of the jury during the trial of said action, and that the court thereupon, at the request of the said T. D. Casey, attorney for the defendant, and J. K. Swihart and W. IT. Burnett, attorneys for the *630 plaintiff, made in open court, ordered that said jury be allowed to separate, and specially admonish the jury as to the law and their duties during the trial of said action;” and the affidavits of eleven of the jurors who state that “the Court specially admonished the jury that they must not talk about the case with anyone, or allow anyone else to talk about it in their presence, nor form nor express any opinion until the case was finally submitted. That during the trial of said action no one talked about said case to affiant or in affiant’s presence, nor was affiant in any way influenced in arriving at his verdict by any person or persons, but affiant arrived at his verdict solely from the evidence given in open court and under the instructions given by the court.” No contention is made that the jury was permitted to separate after the submission of the case.

The defendant in no manner challenged the sufficiency of the evidence, either by motion for an advised verdict of not guilty, or by motion for new trial; neither did he assert in his motion for new trial any error in the court’s rulings on the admission or rejection of evidence, or in the instructions given to the jury or the failure to instruct. Therefore, so far as the trial court was concerned, it was led to believe that no complaint was made as to any ruling made by the court relative to the admission or rejection of evidence, the court’s instructions to the jury, or the sufficiency of the evidence to sustain the verdict.

The laws of this state enumerate seven causes for granting new trials in criminal actions, among which are the following: “. . . [¶] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, or has done or allowed any act in the action prejudicial to the substantial rights of the defendant. 6. When the verdict is contrary to law or clearly against the evidence.” Comp. Laws 1913, § 10917.

The only errors asserted by appellant on this appeal fall within the provisions of the above two quoted statutory provisions; but, as already stated, defendant did not embody any of these grounds in his motion for a new trial, but seeks to assert them for the first time on this appeal. The question is therefore presented, whether the defendant, having failed to incorporate these grounds in his motion for new trial, can now predicate error thereon in this court.

It is contended by defendant’s counsel on oral argument that in view *631 of tbe fact that an order denying a new trial is appealable, and no appeal was taken from snob order, that defendant is not precluded from presenting on this appeal errors relating to tbe failure of tbe trial court to give certain instructions, even though these were not assigned as error in tbe motion for a new trial. We do not believe that this position is well taken, as defendant, when making a motion for a new trial, was required to assert any and all grounds which might be asserted under the statute by such motion. If the trial court erred in its rulings on the admission of evidence or in its instructions to the jury, or if the evidence was insufficient to sustain the verdict, any of these grounds constituted a sufficient cause for a new trial, but the defendant, in per-senting a motion for new trial solely on other grounds, led the trial court to believe that the verdict was not attacked for any of these reasons. In other words, the defendant in the district court took the position that he was not entitled to a new trial on any of these grounds, but upon entirely different ones. This he is not permitted to do. Defendant cannot take the position in the court below in presenting a motion for new trial, that the court’s rulings on evidence and its instructions to the jury are correct, and the evidence sufficient to sustain the verdict, and then on appeal to this court assume the contrary position. “Where a motion for new trial is made by a losing party, all errors complained of must be embraced therein, otherwise they will be 'considered as having been waived; any other practice would operate unjustly to the court below, the presumption being that he would have corrected those errors if he had had an opportunity.” Lowery v. State, 72 Ga. 649. These views are also sustained by the following authorities: Collier v. State, 20 Ark. 36; Wilson v. State, — Tex. Crim. Rep. —, 158 S. W. 1114; Haynes v. State, — Tex. Crim. Rep. —, 159. S. W. 1059; Thompson v. State, — Tex. Crim. Rep. —, 160 S. W. 685; Romero v. State, — Tex. Crim. Rep. —, 160 S. W. 1193; Louisville & N. R. Co. v. Com. 154 Ky. 293, 157 S. W. 369; Huffman v. State, — Tex. Crim. Rep. —, 152 S. W. 638; State v. Sydnor, 253 Mo. 375, 161 S. W. 692; State v. Johnson, 255 Mo. 281, 164 S. W. 209; Coulter v. State, — Tex. Crim. Rep. —, 162 S. W. 885; State v. Connors, 245 Mo. 477, 150 S. W. 1063; Coleman v. State, — Tex. Crim. Rep. —, 150 S. W. 1177; Norton v. State, 181 Ind. 123, 100 N. E. 449; State v. Eaker, 17 N. M. 479, 131 Pac. 489; State v. Gatlin, 170 Mo. 354, 70 S. W. 885; *632 Hill v. State, 112 Ga. 32, 37 S. E. 441; State v. Whitesell, 142 Mo. 467, 44 S. W. 332; Allen v. State, 74 Ind. 216; McCalment v. State, 77 Ind. 250; State v. McKinnon, 158 Iowa, 619, 138 N. W. 523; Weidenhammer v. State, 181 Ind. 349, 103 N. E. 413, 104 N. E. 577. These yiews have also been sustained by this court in the case of State v. Empting, 21 N. D. 128, 128 N. W. 1119, wherein this court, speaking through Chief Justice Morgan, says: “It is now claimed that the verdict is not sustained by the evidence. ... A motion for a new trial was made and overruled..... There is no specification in the motion for a new trial that the verdict is not sustained by the evidence, or that it is against the evidence. The insufficiency of the evidence was nowhere raised or challenged before the trial court, so far as the record shows. We cannot therefore review the evidence to determine its sufficiency. . . . The requirement is that the motion for a new trial must slate the ground. Among these grounds is that the verdict is clearly against the evidence. Without such or an equivalent specificar tion the slate or the trial judge may well presume that the verdict is not attached as being based on insufficient evidence. In this case we have before us nothing showing that the trial court has ever considered whether the evidence sustains a conviction or not. This omission in the motion precludes our right to review the sufficiency of the evidence.”

In the case of State v. Campbell, 7 N. D. 67, 72 N. W. 935, this court, in considering the question of whether or not, in a case where specific exceptions had been taken by the defendant to certain portions, of the court’s instructions, he might avail himself of the provisions, of the statute whereby the instructions were deemed excepted to by operation of law, uses the following language: “It appears that the-defendant’s counsel in this case saw fit to file exceptions with the clerk of. the district court to the instructions given in the charge to the jury. This he might lawfully elect to do under the provisions of § 8178 of the Rev. Codes. Bui, having pursued this course, he must be governed by such election, and will be limited to the exceptions’ which he has seen fit to write out and file with the cleric of the district court. By filing exceptions he has notified counsel for the state,, as well as the courts, that he will predicate error on such exceptions, and none others so far as relates to the instructions given to the jury.” “Where rulings of the trial court constitute proper grounds for a new *633 trial, they cannot be assigned on appeal as independent errors. If presented to the trial court by the proper motion, they are covered by an assignment on that motion; if not so presented, they cannot he made available in the supreme court in any manner." Allen v. State, 74 Ind. 216.

It is contended that the evidence is insufficient to sustain the verdict. This question cannot be reviewed on this appeal. The failure to assert such insufficiency as one of the grounds for new trial in the court below precludes the defendant from doing so in the appellate court. State v. Empting, supra; State v. Reilly, 25 N. D. 339, 141 N. W. 720; State v. Harbour, 27 S. D. 42, 129 N. W. 565. “An objection to the sufficiency of the evidence upon which a conviction was based cannot be raised for the first time on appeal.” 12 Cyc. 813.

. We are satisfied, however, that the contentions of the defendant are untenable for other reasons. As already stated, it is conceded that no requests for additional instructions were made, and no exceptions to the charge taken for want of such instructions, nor was this made one of the grounds for a new trial. It is not contended that any of the principles of law laid down by the trial court in its charge are erroneous, the only complaint being that the court failed to charge on certain propositions of law. And while we do not believe that the question of the sufficiency or insufficiency of the instructions is before this court for consideration, still, in view of the importance of the case we have carefully examined the instructions and are satisfied that they fairly submitted the case to the jury.

The defendant’s first contention is that the trial court’s instructions on circumstantial evidence were insufficient. This contention is wholly without merit. In the case at bar the state’s case does not rest wholly upon circumstantial evidence, as the witness Carberry gave direct testimony against the defense, hence, error cannot be assigned upon the failure of the trial court to instruct as to circumstantial evidence. State v. Foster, 14 N. D. 561. The defendant’s contention is of no merit for another reason, viz., the trial court gave the following instructions to the jury: “I charge you, gentlemen of the jury, that circumstantial evidence is legal and competent in criminal cases such as this is, and, if it is of such character as to exclude every reasonable hypothesis other than that the defendant is guilty, is entitled *634 to the same weight as direct testimony.” This has been held to be a correct statement of the law. Longley v. Com. 99 Va. 807, 37 S. E. 339, 341; Brickwood’s Sackett, Instructions to Juries, § 2494. See also Cunningham v. State, 56 Neb. 691, 77 N. W. 60. We are satisfied that in the absence of a request for more specific instructions, the defendant cannot complain of this instruction. There is also good authority to the effect that in the absence of a request for such instruction, error cannot be predicated upon the failure of the court to instruct upon the law applicable to circumstantial evidence. Romero v. State, — Tex. Crim. Rep. —, 160 S. W. 1193; State v. Alley, 149 Iowa, 196, 128 N. W. 343; State v. Colvin, 24 S. D. 567, 124 N. W. 749. See also State v. Rosencrans, 9 N. D. 163, 82 N. W. 422; State v. Woods, 24 N. D. 156, 139 N. W. 321. Although we find it unnecessary to pass on that question in this case.

The question whether the court is required to instruct the jury with reference to the corroboration of the testimony of an accomplice in the absence of a request so to do, is no longer an open question in this state, as the rule is well settled that it is not error for the court to omit such instructions in the absence of a request. State v. Haynes, 7 N. D. 353, 75 N. W. 267; State v. Rosencrans, supra; see also State v. Hams, 24 S. D. 639, 124 N. W. 955, Ann. Cas. 1912A, 1070.

Neither was it reversible error on the part of the trial court to fail to instruct on the subject of an alibi where no request was made for an instruction on that feature of the case. Ferguson v. State, 52 Neb. 432, 66 Am. St. Rep. 512, 72 N. W. 590; Rider v. State, 26 Tex. App. 334, 9 S. W. 689; Lyon v. State, — Tex. Crim. Rep. —, 34 S. W. 947; Smith v. State, — Tex. Crim. Rep. —, 49 S. W. 583; Goldsby v. United States, 160 U. S. 70, 40 L. ed. 343, 16 Sup. Ct. Rep. 216; Com. v. Boschino, 176 Pa. 103, 34 Atl. 964; Gadlin v. State, 13 Ga. App. 660, 79 S. E. 751; Banks v. State, — Tex. Crim. Rep. —, 150 S. W. 184; Inklebarger v. State, 8 Okla. Crim. Rep. 316, 127 Pac. 707. And, as a general rule, in order to predicate error on incomplete instructions, it is necessary to submit a request to the trial court for appropriate instructions. And this court has held that it is not error for the trial court to omit a definition of reasonable doubt in the absence of a request therefor. State v. Montgomery, 9 N. D. 405, 83 N. W. 873. See also People v. Carter, 117 Mich. *635 576, 76 N. W. 90; Birmingham v. State, 145 Wis. 90, 129 N. W. 670; Guenther v. State, 137 Wis. 183, 118 N. W. 640; State v. Frazer, 23 S. D. 304, 121 N. W. 790; State v. Jones, 145 Iowa, 176, 123 N. W. 960; Territory v. Chartrand, 1 Dak. 379, 46 N. W. 583; State v. Woods, 24 N. D. 156, 139 N. W. 321. The court in its instructions to the jury minutely defined all the elements of the several crimes included in the information, from murder in the first degree to manslaughter in the second degree; defined all the elements of the crimes so included, and charged the jury that in order to find the defendant-guilty of murder in the second degree, they must find from all the evidence in the case each and all of the facts necessary to be found in order to make such charge to be true to their satisfaction beyond a reasonable doubt; and that they must be satisfied beyond a reasonable doubt from the evidence that defendant intentionally, purposely, and without legal justification or excuse, killed Thomas Corcoran at the time and place charged in the information in this case; and the court further charged that if the jury had any reasonable doubt as to the defendant’s guilt of any of the crimes defined in the instructions, then it was their duty to find him not guilty; that the defendant is presumed to be innocent, and that the burden of proof to establish his guilt was upon the state; and that the evidence must be sufficient to establish it beyond a reasonable doubt. The jury, therefore, guided by these instructions, necessarily must have understood that if the defendant was at some place different from where the crime was committed at the time of its commission, or if they had any reasonable doubt as to such fact, that they must acquit him.

The court’s failure to instruct on the law relative to the corrobora tion of an accomplice might be justified on another ground. We find that the defendant’s attorney, in his affidavit submitted in support of the motion for a new trial, after setting forth the statements claimed to have been made by one of the prosecuting attorneys in his argument to the jury, goes on to say: “Thus prejudicing the defendant in the eyes of the jury, and leading them to believe that said Carberry . . . was an accomplice in such crime with said defendant, Herbert Glass; that no evidence of such fact was produced in the trial of said case, nor was the case tried, nor were the instructions of the court given, upon the theory that Herbert Glass was an accomplice with Carberry in *636 the commission of said murder, or that Carberry was an accomplice of Glass; that no instruction was given by the court upon the theory that Glass and Carberry acted together in this murder.”

The alleged errors concerning the admission of evidence are wholly without merit. . The principal portion of the testimony complained of was received without objection, — some of it in response to questions asked by defendant’s counsel. No error can be predicated thereon.

We have already enumerated the grounds set forth in the motion for new trial and the affidavits submitted for and against the same. The first ground of such motion is that the jury was permitted to separate while the case was being tried, and before its submission to the jury. Under the laws of this state it was within the discretion of the trial court to permit the jury to separate while the cause was being tried. Comp. .Laws, § 10857. And in view of the fact that such separation was permitted at the request of defendant’s own attorney, it is obvious that the trial court did not abuse its discretion in permitting such separation. The other ground of such motion, as already stated, is that one of the attorneys for the prosecution, during his argument to the jury, made certain remarks prejudicial to the defendant, and this is apparently the only ground that was seriously urged in the court below. No exceptions were taken by defendant’s counsel to the remarks alleged to have been made by the state’s attorney during his argument to the jury, and no request was made to have the jury instructed to disregard such statements. In fact, so far as the record shows there is nothing to indicate that such statements were made. In order to predicate error on such statements, however, it is essential to take proper exceptions thereto, and give the trial court opportunity to rectify the error if any. State v. Matheson, 142 Iowa, 414, 134 Am. St. Rep. 426, 120 N. W. 1036; People v. Giddings, 159 Mich. 523, 124 N. W. 546, 18 Ann. Cas. 844; Holmes v. State, 82 Neb. 406, 118 N. W. 99; State v. Holburn, 23 S. D. 209, 121 N. W. 100. But even though no such request was made, we find that the trial court in its instructions to the jury expressly instructed the jury as follows: “The argument of counsel here before you was made for the purpose of assisting you in determining the true facts' in this case. Any statements made by them are not to be considered as evidence by you in this case. If they have expressed opinions in your *637 bearing to tbe effect that they believe the defendant guilty or innocent ■of. the crime charged in the information, you should disregard such ■opinions of counsel, and be guided solely by the evidence in the case and the law as contained in these instructions, in making up your verdict. If the attorneys have misstated the testimony to you in any way, you should disregard such misstatements. . . . You are the sole and exclusive judges of all questions of fact herein involved.”

The defendant was tried in a different county from the one wherein the crime was committed, at a period almost two years subsequent to the commission of the crime. There is nothing in the record to indicate that the defendant did not receive just and fair consideration at the hands of the trial court and jury. The motion for a new trial was properly denied. It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.