State v. Potter , 60 N.D. 183 ( 1930 )

I agree in the conclusion reached by Chief Justice Burke that the judgment of conviction and the order denying the defendant's motion for a new trial must both be affirmed. I wish, however, to express briefly my views respecting the evidentiary point which seems to be the principal ground for the dissenting opinion.

With respect to the testimony of the witness Wolf, on account of the admission of which the defendant complains, I am doubtful, even though this evidence was inadmissible, that its reception was prejudicial to the defendant. But, in any event, I am of the opinion that it was properly received.

There is no question but that Webb, the deceased, came to his death at the hands of the defendant Potter. Potter's defense is that the killing was accidental. The state contends that it was willful. As supporting this contention the state offered evidence to establish motive on the part of Potter — suspicion and jealousy of his wife. Consistent with this theory it offered the evidence of Mrs. Wolf. After showing other occurrences on the evening of the killing, the state showed that Mrs. Potter and Webb left the Potter home together; that shortly thereafter Webb returned; that he again left; that Potter who had been drinking was apparently suspicious; that he went to various friends and investigated as to the whereabouts of his wife; that he telephoned the same inquiry; that he finally went to the Q.B. R. Building, where his wife's sister, Mrs. Krueger, roomed; that he went up the stairs and passed along the hallway where Mrs. Krueger's room was situated; that he did not stop at her door but went on to the end of the hall; that the occupants of the room must have heard him because Mrs. Krueger came to the door and inquired as to what he wanted. Apparently he was not invited into the room, and he did not enter. His wife came to the door and spoke to him, then put on her coat, came out, and induced him to go home. Now Mrs. Wolf's testimony offered by the state is that an hour or so before Potter came she heard someone come up the stairs and enter the room. Then she heard other footsteps. Then she heard a murmur of conversation and a man's voice in the room. Some time later Mrs. Krueger came. Apparently no one left the room after that. Then Potter came. It is of course clear that if Potter had no intimation that there was a man in the room where his wife was, the fact that a man was there would not be admissible. The pertinent thing was as to Potter's state of mind: what he thought; what he believed. The fact was of no consequence except as it induced the belief. Now it seems to me that the circumstances, including those shown by the testimony of Mrs. Wolf, are sufficient to warrant the inference that Potter had reason to believe and did believe that some man was in the room where his wife was. And if he believed that there was a man there, he may have believed that the man was Webb — whether rightly or wrongly is immaterial. Mrs. Wolf's testimony, of which the defendant complains, that she heard a man's voice there more than an hour before Potter appeared, is admissible, if for no other reason than to show that it was possible for one not in the room in question to hear voices there, including the man's voice. If Mrs. Wolf could hear, so also could Potter. And so it was shown that a man was there before Potter appeared — that his voice could be heard and was heard, and that a man left there shortly after Potter and his wife departed, together with the circumstance that Potter was not invited into the room; that he passed the door without rapping; that those within were vigilant to come to the door when they heard footsteps and apparently to see he did not enter the room — all of these things were admissible for the purpose of showing that Potter had reason to believe and did believe that there was a man in the room with his wife. The fact that Mrs. Wolf's testimony tended to show that Mrs. Potter and this man, whoever he may have been, were alone in the room for some time, was only incidental to the matter of the proof that the man was there and that Potter had grounds to believe and did believe that he was there. Of course this evidence was not admissible for the purpose of blackening — if it had that effect — Mrs. Potter before the jury and thus destroying her as a witness. But if it was otherwise relevant the fact that it had such an incidental effect did not render it inadmissible. State v. Gummer, 51 N.D. 445, 200 N.W. 20; State v. Heaton, 56 N.D. 357, 217 N.W. 531.

Some reference has been made to the argument of counsel for the state as set forth in his brief. Of course we are not bound by what counsel may have argued. Whether his argument is good or not is immaterial. Our whole duty is to consider the record and to determine the law as applicable under the record.