State v. Shepard ( 1937 )

The defendants were convicted in the district court of Ward county of the crime of grand larceny. Before each defendant was sentenced their attorney made a motion in arrest of judgment on the grounds of error of law arising during the course of the trial and insufficiency of the evidence. In the case of each defendant that motion was denied and sentence passed. Immediately thereafter the defendants' attorney made motions on behalf of each defendant for a new trial, which motions were denied. This is an appeal from the judgment and from the order denying a new trial.

The district court was clearly correct in denying the motion in arrest of judgment. Such motion can be founded only on some defect, appearing on the face of the information or indictment, which constitutes a ground for demurrer. Comp. Laws 1913, §§ 10,921, 10,737.

In this case there was no demurrer to the information and the motion in arrest of judgment does not purport to be founded on any ground rendering the information demurrable.

The transcript of the proceedings had upon the trial discloses that a motion for a new trial was made in open court immediately after sentence had been pronounced. The grounds of the motion were: "that the defendants intend to make a motion before the court for a new trial;" "error of law in the decision of questions of law arising during the course of trial;" and "that the verdict is contrary to the law and clearly against the evidence adduced on the trial."

In the briefs and on the oral argument only one contention is advanced by the defendants why the judgment of conviction should be set aside and that is that the evidence is insufficient to sustain the verdict.

The defendants' motion for a new trial was restricted to the grounds stated above. There was no attempt to specify the particulars in which it was claimed the evidence was insufficient. There was merely the general statement that "the verdict was clearly against the evidence introduced on the trial."

It is presumed that a trial was regular and fair and that a verdict of conviction is sustained by the evidence and is correct. A defendant who moves for a new trial on the ground of the insufficiency of the evidence has the burden of pointing out to the trial court wherein the evidence is insufficient to sustain the verdict.

It is elementary that the question presented on an appeal to this court is whether the rulings of the trial court that are challenged were erroneous and, if erroneous, whether they operated to the prejudice of the appellant. An appellant has the burden of presenting a record affirmatively showing error in the trial court.

When a motion for a new trial is made on the ground that the evidence is insufficient to sustain the verdict the movant has the burden of pointing out wherein the evidence is insufficient. In such case the motion is addressed to the sound judicial discretion of the trial court and the appellate court will not interfere unless an abuse of such discretion is shown. State v. Cray, 31 N.D. 67, 153 N.W. 425; State v. Stepp, 48 N.D. 566, 185 N.W. 812; State v. Weber, 49 N.D. 325, 191 N.W. 610; State v. Vogt, 57 N.D. 335, 221 N.W. 887.

The evidence shows that between about eleven o'clock p.m. on September 18, 1936 and about twelve-thirty a.m. on the morning of September 19, 1936 a Chevrolet truck loaded with ten or eleven large sacks of wool, some hides and metal was stolen from the south side of the 4-0-6 Garage on Central Avenue in Minot, Ward County, North Dakota. The wool was worth approximately $735, and with the hides and metal made the total value of the load $894. About eleven o'clock on the morning of September 19, the two defendants were at Crosby, North Dakota, about 128 miles northwest of Minot. Shepard, the light haired one, inquired of a gas station attendant where the Crosby Hide and Fur Company was located. They hunted up Harry Braun, the manager of the Crosby Hide and Fur Company. They asked him the price of wool and told him they had ten or eleven sacks. The men were together when this talk was had with Mr. Braun. They told him they would be back with the wool on Monday. On Monday morning, September 21, about eight o'clock, both men arrived at the Crosby Hide and Fur Company's place of business pulling a trailer behind their car. On it were three large sacks of wool which were sold to the Crosby Hide and Fur Company. Defendant Paris had the negotiations for the sale, but the other defendant was with him at all times. To pay for this wool, the Crosby Hide and Fur Company gave its check for $156.40 made out to Oscar Burke, the name, Mr. Braun claims, Paris told him to use. Defendant Paris took this check to the bank, endorsed it "Oscar Burke," and cashed it. Soon thereafter a customs inspector picked up the two defendants at an oil station in Crosby for investigation, and they were held until the officials from Minot arrived. The wool sold by these defendants was identified as part of the load stolen. The money was taken from defendant Paris and returned to the bank. On Saturday morning, September 19, about six a.m. the stolen Chevrolet truck with some small gunny sacks of wool and hides and metal was found on a farm near Westhope, about 57 miles northeast of Minot. Later seven sacks of the wool and some metal were found in some buck brush thirty or forty rods off the highway, twelve miles northwest of Maxbass and some fourteen miles west of the place where the truck was found.

The defendants live at Mohall, forty-eight miles northwest of Minot, about fifteen miles west of where the wool was found in the buck brush, and eighty miles southeast of Crosby. The defendant Shepard had been engaged in the wool business, buying for the Macmillan Company, in Mohall for about two years. The defendant Paris had been assisting him. Both testified, denying any connection with the crime, claiming to have been home between the hours of eleven p.m. September 18 and seven a.m. September 19, 1936. Shepard was corroborated by his wife and by one Burnstad who claims to have been at their home from nine o'clock to about eleven-thirty on the evening of September 18. Paris by his wife only. Defendant Paris claims to have bought the three large sacks of wool for $105 about nine o'clock p.m. Saturday evening, September 19, from a stranger who, he says, brought them to his barn. He claimed he paid for them with money he kept in the house. He says he did not notice the sacks were initialed. He says he planned to sell them to Shepard but could not because Shepard had ceased buying; that he then engaged Shepard to haul the wool for him to Crosby for $10. He explained the trip to Crosby on Saturday morning on the grounds that they wanted to get the Crosby Hide and Fur Company to finance the buying of a carload of iron but found one of the Braun brothers too drunk to talk with so only asked the other one about the prices of wool and other articles. The trip there on Monday morning with the wool was explained by him on the grounds that he again wanted to talk about the financing of iron purchases, and further, that he wanted to bring back lignite coal from Noonan on the trailer. He claims that Harry Braun wrote the check payable to Oscar Burke without any suggestion from him, saying it was to keep the records straight.

On rebuttal, a customs officer, Mr. Shapland, claims that when he was investigating the matter for smuggled wool and asked Mr. Paris why he took the check in an assumed name if there was nothing wrong with the wool, Paris said, "I'll tell you, I don't know but what the wool might be mortgaged or a lien on it, and that is why I had the check to get out that way." This was denied by Paris, and he claimed to have said that the Brauns made the check out that way because they might have figured the wool might be mortgaged. There is also in the testimony that Paris and Harry Braun knew each other when boys going to school twelve or fifteen years before.

Where evidence is conflicting, and the case has been fairly submitted to the jury under proper instructions, the verdict of the jury becomes a finding of fact, which will not ordinarily be disturbed on appeal. Griffin v. Implement Dealers' Mut. F. Ins. Co. 64 N.D. 146, 205 N.W. 780; Jaszkowiak v. Refling, 62 N.D. 601, 245 N.W. 817; Schulkey v. Brown, 59 N.D. 345, 230 N.W. 6; Kraft v. Martell, 58 N.D. 58, 225 N.W. 79; Hampton v. Ross,56 N.D. 423, 217 N.W. 845; Grewer v. Schafer, 50 N.D. 642, 197 N.W. 596; Branthover v. Monarch Elevator Co. 42 N.D. 330, 173 N.W. 455; Blackorby v. Ginther, 34 N.D. 248, 158 N.W. 354; 5 C.J.S. 611; 3 Am. Jur., Appeal and Error, p. 444, § 888.

The jury was instructed, among other things, that possession of recently stolen property, unless satisfactorily explained, was a circumstance "tending to show the guilt of the defendants. However, if the explanation given by the defendants seems reasonable to the jury and, after considering all the case, you have a reasonable doubt as to whether the defendants are guilty, then you should acquit them." They were also instructed that if they were satisfied beyond a reasonable doubt that one of the defendants was guilty but were not satisfied beyond a reasonable doubt as to the other defendant then it was their duty to return a verdict of guilty as to the one and not guilty as to the other.

The verdict of conviction by the jury after that direct charge shows the jury were not satisfied with the explanation of the defendants or of either of them and disbelieved them. They were the judges of the facts. They saw and heard the witnesses testify. They could observe their demeanor while testifying. So also did the trial judge. He has confirmed the jury's findings on this matter of fact by denying a motion for a new trial. The findings of the jury and the trial court upon that matter are binding upon this Court when having reasonable support in the evidence. State v. Cray, 31 N.D. 67, 153 N.W. 425, supra; Harmon v. Haas, 61 N.D. 772, 241 N.W. 70, 80 A.L.R. 1131, 33 N.C.C.A. 52; State v. Anderson, 58 N.D. 721, 227 N.W. 220, 65 A.L.R. 1304; Moore v. Schrage, 51 N.D. 858, 201 N.W. 163; Stiehm v. Guthrie Farmers' Elevator Co. 40 N.D. 648, 169 N.W. 318; Odegard v. Haugland, 40 N.D. 547, 169 N.W. 170; Ellis v. Nelson, 36 N.D. 300, 162 N.W. 554; 5 C.J.S. 579; 3 Am. Jur., Appeal and Error, p. 441, § 887.

In considering the evidence, therefore, the version thereof most favorable to the State is the one controlling.

This shows the stealing of the truck with ten or eleven sacks of wool in Minot about midnight between the 18th and 19th of September 1936, and the appearance of the defendants, together, in Crosby about eleven a.m. on September 19 inquiring the price of wool and stating they had ten or eleven sacks which they would bring in on Monday. Mohall is at least thirty miles further from Crosby than it is from Minot, a much larger market place. Seven sacks of the wool were found cached near the highway directly east of and easily accessible from Mohall. A few small sacks of wool were found on the truck abandoned further east near the same highway. On Monday morning about 8:30 a.m. the defendants, again together in Shepard's car, appeared at Crosby with three sacks of the wool. Thus the ten or eleven sacks of wool stolen, being also the amount of wool which the defendants on Saturday said they had, were accounted for. No showing is made that the defendants, or either of them, on Saturday morning had any wool of their own. The defendant, Paris, asked to have the check made out in the name of "Oscar Burke." The defendant, Shepard, heard the talk about the check and knew it was being made out in a fictitious name. Paris endorsed the check with that fictitious name. The proceeds of the check were taken from him by the sheriff. To the customs officer's inquiry Paris said he had had the check made out that way.

Here is possession of recently stolen personal property which reasonable men could find was not satisfactorily explained coupled with suspicious circumstances in connection with the talks and actions of the defendants concerning it. See State v. Rosencrans, 9 N.D. 163, 82 N.W. 422. See note in 101 Am. St. Rep. 481 at 493.

Considering all the evidence and the law applicable thereto we are convinced, not only that the trial court did not abuse its discretion, but also that there is sufficient evidence to sustain the verdict. See State v. Hazer, 57 N.D. 900, 225 N.W. 319.

Affirmed.

CHRISTIANSON, Ch. J., and NUESSLE, J., concur.