State v. Haakenson , 1973 N.D. LEXIS 95 ( 1973 )


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  • TEIGEN, Judge

    (dissenting).

    I agree with Judge Knudson that under the evidence and the circumstances of this case the instructions on self-defense, considered as a whole, are not erroneous nor prejudicial. It is my further conclusion that there is no evidence in this record requiring that instructions on self-defense be given. If there was any error it consisted of giving the instructions. However, such error favored the defendant and, since it was in his favor, he cannot complain about it. People v. Griner, 30 Mich.App. 612, 186 N.W.2d 800 (1971).

    Instructions must be tailored to fit the facts of the case. There is no evidence in *402this case from which the jury could infer that the defendant was not, and did not continue to be, the aggressor. Under all the self-defense instructions given, the law as to an aggressor is clearly and correctly stated. Although paragraph two of the instructions on self-defense may not be correct as a general statement of the law, it is correct under the state of the facts in this case as the word “defendant" specifically refers to the defendant in this case who, in order to have the benefit of the doctrine of self-defense, was required to withdraw and inform his adversary, by words or actions, that he desired to end the conflict, and was thereafter pursued. The majority, I fear, have looked upon the challenged instruction as a general proposition of law, and, in that light, have justly criticized it. However, as applied to the facts in this case, and particularly in light of the following clarifying instructions, it could do this defendant no harm. The jury, of necessity, in view of the evidence, must have applied the instruction to the facts in this case and to those facts alone. Furthermore, in construing the instruction, and all the instructions given on the doctrine of self-defense, it is still more clearly made to appear that the defendant was not prejudiced. In State v. Carter, 50 N.D. 270, 195 N.W. 567 (1923), this court held:

    “Mere defectiveness or inaccuracy in the charge is not necessarily sufficient to justify a reversal. It must be made to appear that the court misstated a rule of law in a substantial particular and it must appear, from an examination of the entire charge, that the misstatement was calculated to mislead the jury in arriving at a verdict upon some question submitted to it. An instruction which states the law inaccurately or even incorrectly in part, may be cured by other portions of the charge which correctly state the law. State v. Hoff, 29 N.D. 412, 150 N. W. 929; 16 C.J. 1053. Likewise, an instruction not fully stating the law may be cured by a subsequent • instruction which completes it. 17 C.J. 347. Theoretical or technical error, or error which, for other reasons, is not calculated to lead the jury to return an erroneous verdict, does not constitute a ground for a reversal. Comp.Laws 1913, § 11,013 [Section 29-28-26, N.D.C.C.]; State v. Tracy, 34 N.D. 498, 158 N.W. 1069; ⅜ ⅝ ijt )t

    Section 29-28-26, N.D.C.C., states:

    “After hearing an appeal, the supreme court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.”

    We are not here involved with a factual situation in which the defendant was in his home, his office or his place of business, nor was he acting in the performance of his duty to make an arrest or prevent an escape. The altercation occurred on a public highway at a point where the defendant had voluntarily gone, armed with a revolver, for the purpose of confronting a group of youths whom his friend, Mr. Sweep, had informed him had earlier impeded Sweep’s progress upon the highway. The youths were engaged in an outdoor party in a wooded area through which the highway passed, and when Mr. and Mrs. Sweep had earlier attempted to pass by, the youths, or some of them, were in the process of dragging a log or fallen tree across the highway to replenish their bonfire. This action caused the first encounter. Mr. and Mrs. Sweep then drove back to the defendant’s home and, within a few minutes, the defendant and Mr. Sweep went to the scene in Mr. Sweep’s automobile. The defendant took his revolver with him. The automobile stopped on the highway in the proximate vicinity of the first confrontation. The two men got out of the car. The defendant alighted from the right side and Mr. Sweep from the left. With his revolver in his hand, the defendant held it high in the air and fired one or more warning shots. A number of youths were in the immediate area. A number of them were moving toward the car. The *403defendant shouted a warning and fired warning shots, declaring that he was a deputy sheriff and had come to make an arrest. Profanities, vulgarities and taunts were exchanged between the defendant and the young men. The defendant, however, continued to press forward. The deceased came toward the car from its left and moved toward the front thereof. He was not armed. As he approached, the defendant fired the fatal shot at close range, killing the deceased with a bullet through the heart.

    The defendant intentionally brought on the difficulty which ensued. He provoked the occasion. There is no evidence from which the jury could infer that the defendant withdrew or announced a desire for peace. It is clear he continued forward, pressing his demands, during which time he fired his revolver at least three times. The evidence on this issue is not in conflict. The defendant has not established a case which makes the doctrine of self-defense available to him. His acts amounted to a legal fault, provoking the difficulty which ensued and, having provoked the difficulty, he continued the resulting affray as an aggressor to the point where he shot the deceased. I find no evidence in the record to justify an instruction of self-defense. If there was any error, it consisted of giving an instruction on the doctrine of self-defense, but such error was in favor of the defendant and he cannot complain about it.

    I agree with the majority that the sufficiency of the evidence and the alleged error in instructions are reviewable on this appeal from the judgment alone. However, I do not agree that the scope of review on appeals in criminal cases is different from that on appeals in civil cases. It is my conclusion that the sufficiency of the evidence and the claimed error in the instructions are reviewable in this case because the order denying the motion for a new trial, in which these issues were raised, was entered prior to the entry of the judgment and thus became an intermediate order and reversible on appeal from the judgment under Section 29-28-27, N. D.C.C. This section provides:

    “Upon an appeal taken by the defendant from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the defendant.”

    We have a similar statute governing civil appeals. Section 28-27-28, N.D.C.C., provides :

    “Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the district court, whether the same is excepted to or not. * * * ”

    In construing the civil statute we held in Goodman v. Mevorah, 79 N.D. 653, 59 N. W.2d 192 (1953), as follows:

    “Where a motion for a new trial is made and denied before judgment is rendered and entered the order denying a new trial is reviewable on an appeal from the judgment.”

    But

    “Where an order denying a motion for a new trial is made after judgment an appeal from the judgment alone does not bring up for review the order denying a new trial.”

    An order which grants or refuses a new trial is an appealable order in both civil (Section 28-27-02(4), N.D.C.C.) and criminal (by the defendant, Section 29-28-06, N.D.C.C., and by the State, Section 29-28-07, N.D.C.C.) actions. The statutes in both criminal and civil appeals harmonize and I see no reason for a difference in the scope of review permitted in this court as a result thereof.

    Further, I wish to point out that in both civil and criminal appeals from the judg*404ment, questions of law or of the sufficiency of the evidence can be reviewed on an appeal from the judgment without the necessity of having made a motion for a new trial, providing those issues were raised and ruled upon in some appropriate fashion in the lower court. Sections 28-27-27 and 29-23-11, N.D.C.C. Thus there is no necessity to move for a new trial after the verdict in order to raise the issues of sufficiency of the evidence or questions of law in either civil or criminal appeals, providing the matters were brought before the trial court by an appropriate objection, exception or motion and ruled upon by the trial court prior to the entry of the final judgment.

    For these reasons it is my opinion that if the order denying the motion for a new trial had been entered subsequent to the entry of the final judgment of conviction, the issues includable in that order, from which no appeal was taken, became res ju-dicata and not reviewable on appeal from the judgment alone.

Document Info

Docket Number: Crim. 432

Citation Numbers: 213 N.W.2d 394, 1973 N.D. LEXIS 95

Judges: Vogel, Teigen, Knudson, Erickstad, Paulson

Filed Date: 12/11/1973

Precedential Status: Precedential

Modified Date: 11/11/2024