Fisk, J.
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[218]*218ing a verdict. The supreme court of California has decided, and we think correctly, that an exception to the refusal of the court to advise an acquittal is not authorized. People v. Lewis, 124 Cal. 551, 553, 45 L.R.A. 783, 57 Pac. 470. See also People v. Daniels, 105 Cal. 262, 38 Pac. 720; People v. Stoll, 143 Cal. 689, 77 Pac. 818.
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. [219]*219State, 75 Md. 621, 23 Atl. 1097; State v. Lynn, 3 Penn. (Del.) 316, 51 Atl. 878; State v. Brown, 72 N. J. L. 354, 60 Atl. 1117.
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[220]*220tention, merely refers us to the several alleged errors set out in his motion, without in any manner supporting by argument or citation of authorities, and he assumes it to be the duty of this court to search the record to ascertain whether any or all of such alleged errors are well founded. We quote from counsel’s brief: “We take it to be the duty of the attorneys appearing in the trial of a criminal case, on behalf of the state as well as of the defendant, who are officers of the court, and also the duty of the court, to see that an accused has a fair trial, and that he is not deprived of his personal'liberty without due process of law.
Free access — add to your briefcase to read the full text and ask questions with AI
Fisk, J.
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[218]*218ing a verdict. The supreme court of California has decided, and we think correctly, that an exception to the refusal of the court to advise an acquittal is not authorized. People v. Lewis, 124 Cal. 551, 553, 45 L.R.A. 783, 57 Pac. 470. See also People v. Daniels, 105 Cal. 262, 38 Pac. 720; People v. Stoll, 143 Cal. 689, 77 Pac. 818.
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. [219]*219State, 75 Md. 621, 23 Atl. 1097; State v. Lynn, 3 Penn. (Del.) 316, 51 Atl. 878; State v. Brown, 72 N. J. L. 354, 60 Atl. 1117.
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[220]*220tention, merely refers us to the several alleged errors set out in his motion, without in any manner supporting by argument or citation of authorities, and he assumes it to be the duty of this court to search the record to ascertain whether any or all of such alleged errors are well founded. We quote from counsel’s brief: “We take it to be the duty of the attorneys appearing in the trial of a criminal case, on behalf of the state as well as of the defendant, who are officers of the court, and also the duty of the court, to see that an accused has a fair trial, and that he is not deprived of his personal'liberty without due process of law. So that, if the record in this case as presented to this court in any portion of it discloses that some part or parts of the procedure by which the judgment appealed from was reached was contrary to the law' governing such matters, then this court will rectify such error by reversing the decision, whether or not we in our brief present reasons and authorities for so doing. Pursuant to this thought we invite the court’s particular attention to the record in this case and the assignment of errors on pages 18 and 19 of this brief.” We do not understand the rule to be as thus stated by counsel. By rule 20 of this court the preparation of briefs in criminal cases is governed (with certain modifications not here material) by the rules regulating the preparation of briefs in civil causes, and rule 14 relating to briefs in civil causes not to be tried anew on appeal provides, among other things: “In the body of his brief appellant shall present his reasons in support of each error assigned, with a concise statement of the principles of law applicable thereto with authorities supporting the same, treating each assignment relied upon separately, and such errors as are merely assigned and not supported in the body of the brief by reasons or authorities will be deemed to have been abandoned.” We know of no reason why such rule should be relaxed in favor of the appellant in the ease at bar. The presumption always obtains in criminal as well as civil appeals, that the record is free from error, and the appellant, who alleges the existence of error, has the burden of affirmatively showing that such error exists.. Appellant has signally failed in this regard.
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.
[221]*221The only remaining assignment requiring notice relates to the ruling of the court in denying' defendant’s motion in arrest of judgment. This is apparently the chief ground relied on for a reversal, .and the contention, in brief, is that the information being in the language of the statute merely is not sufficient. The sufficiency of the information was first challenged by the motion in arrest of judgment. This being true, it is a settled rule of this court that the sufficiency of the allegations will be construed with less strictness than when raised by demurrer. State v. Johnson, 17 N. D. 554, 118 N. W. 230. It was also settled in said case that “where an information 'states facts constituting an offense in general words, and in the language of the statute defining the offense, the information is sufficient as against a motion in arrest of judgment, although some of the necessary allegations are stated or appear by inference, and not by positive allegation.” The allegations of the information in the case at bar are substantially in the language of the statute and follow the rule above announced, we must hold the information sufficient. By what is above stated, we do not intend to intimate that the information would not be held sufficient, even as against an attack by demurrer-. Upon this question no opinion is expressed, but see Com. v. Malloy, 119 Mass. 347; 2 McClain, Crim. Law, § 934.
No prejudicial error having been called to our attention, the judgment and orders appealed from are affirmed.
All concur, except Ellsworth and Spalding, JJ., dissenting.