State v. Gibson , 69 N.D. 70 ( 1938 )

The defendant has petitioned for rehearing.

It is first contended that this court erred in considering the motion for a new trial made on November 2d 1935, as a "second motion for a new trial and subject to the same objection as an original motion for a new trial." It is argued that, a motion for a new trial having been made within the time allowed by law, additional specifications might be made even after the time to move for a new trial had expired, and that the specifications and grounds presented by the motion noticed to be heard on November 2d 1935, might, and should, have been considered and determined. The contention is unsound. In this case, a motion for a new trial was heard by the court on July 20th, 1935. On July 26th, 1935, the trial court entered an order denying such motion. On October 25th, 1935, the defendant caused to be served a document entitled "Notice of Motion and Additional Specifications of Error." The notice refers to the motion for a new trial first made, and further states that such "motion was denied." It then further states "that at 2 o'clock in the afternoon of the 2d day of November, A.D. 1935, the defendant Gladys R. Gibson will again move the court . . . for an order vacating and setting aside the verdict of the jury and the judgment entered thereon in the above entitled case, and for an order Granting a New Trial of said cause on the following grounds, . . ."

In this state the grounds for a new trial are prescribed by statute, and the time within which such motion must be made is also regulated by statute. This being so, a motion for a new trial in a criminal action must be made within the time fixed by the statute, and upon the expiration of the statutory period, the court ceases to have power to entertain the motion. State v. Hagan, 54 N.D. 136, 208 N.W. 947. See also 16 C.J. pp. 1120, 1121, 1210.

While a motion for a new trial is pending, a district court doubtless has power to permit ordinary amendments of the motion, and where the statutory time to move for a new trial has not expired, it also has power to permit additional grounds to be added. But, where, as here, a motion for a new trial has been made, and denied, and the time in which to move for a new trial has expired, the district court has no power to permit an additional motion for a new trial to be made. The fact that a former motion was made and denied does not extend the statutory period, or confer power upon the court to entertain a motion for a new trial after the time fixed by law has expired. On November 2d 1935, when the so-called motion for a new trial upon additional specifications was noticed to be heard, the defendant "had no motion for a new trial pending. There was, therefore, nothing to amend. It was too late to institute such motion." People v. Wessel, 98 Cal. 352, 355, 33 P. 216.

It is next contended that this court erred in holding the written statement of the defendant to be an admission and not a confession. And it is again argued that even though such statement is an admission and not a confession the same rules should be applied in determining its admissibility as that of a confession; that the trial court should have heard evidence and determined whether it was given voluntarily before it was offered or received in evidence, and that it should not have been admitted until the trial court, after such hearing, had determined that it was given voluntarily.

These questions were considered with care before the former opinion was rendered, and are discussed at some length therein. In view of its importance in this case, we have again reviewed the authorities, and have again gone over the record in this case, and have reached the same conclusions that were stated in the former opinion.

As was shown in the former opinion, the written statement of the defendant was obtained from her by a private detective. This detective, Kulis, had been employed by the state's attorney to work on the case. After Kulis had been employed, he rented and occupied rooms in defendant's home at Dickinson. While he was living there, the defendant talked about selling her home, and Kulis agreed to procure a purchaser. Defendant's purpose in going to Jamestown was to meet the prospective purchaser. The written statement was made in a cabin at a tourist camp near Jamestown. There is no claim that Kulis at that time, or at any time prior thereto, had even intimated that he had any connection with the state's attorney, or that he had any authority over, or interest in, the investigation in behalf of the prosecution. The uncontradicted evidence establishes quite the contrary. The evidence establishes beyond all doubt that the defendant did not know that Kulis had any connection with the prosecution, and that she was under the belief that whatever interest he had in the matter was adverse rather than favorable to the prosecution. Before the written statement was made, he showed her the gun with which Nathaniel Gibson had been shot, and told her he had stolen it from the sheriff so that it would not be available as evidence, and that he was going to "get the inquest." He told her he wanted to help her, that he belonged to a gang in Chicago. Later, when the defendant was called and testified as a witness in her own behalf, she testified that the statement had been obtained from her by threats, but when asked by her own attorney if Kulis told her why he wanted the written statement, she answered: "Yes, so that I wouldn't tell anybody, so that I could be with his gang and wouldn't tell what he had done to me, that is what he wanted it for, that is what he told me."

We adhere to the views expressed in the former opinion: — the written statement did not constitute a confession, but is an admission, and without the scope of the confessions rule.

It is next contended that in the former opinion, we overlooked a specification of error predicated upon the denial of a motion to strike the written statement of the defendant and certain oral statements made by her during the conversation had preceding and following the making and delivery of such statement on the ground that according to the evidence the written statement was but a part of a statement partly in writing and partly oral made by the defendant; that the oral statements and the written statement construed together constituted a confession, and that it was inadmissible because not given freely and voluntarily. The motion to strike was made at the close of the state's case. It was followed by another motion to strike the written statement on the ground that it had not been given voluntarily. Both motions were followed by motions to strike certain other evidence.

A number of assignments of error were based upon the admission of the written statement. Among such assignments was one predicated upon the motion to strike the same. The several assignments were grouped and argued together. The other specifications were predicated upon the proposition that the written statement (exhibit 29) constituted a confession and not an admission, and that the trial court should have heard evidence relating to its admissibility in absence of the jury, and that the question whether it was voluntarily given should not have been submitted to the jury, but should have been determined by the court.

The record discloses the following as regards the introduction in evidence of the written statement: It was first shown to a witness who testified that he was familiar with the handwriting of the defendant, and that the statement was in her handwriting. But the statement was not then offered in evidence. Apparently there had been some discussion between counsel and the court concerning the admissibility of the statement, not set forth in the record, because the next reference to the written statement occurs in certain proceedings had in chambers out of hearing of the jury, but in the presence of the defendant and her counsel. It appears from what was then said, that written briefs had been submitted to the trial court upon the question whether the statement was an admission or a confession. Counsel for the state stated that it was his contention that the written statement was an admission and did not fall within the confessions rule. In response to an inquiry by the court, he stated that he proposed to offer the statement in evidence, but that he would probably have a witness testify concerning a conversation overheard at the time the statement was given. Counsel for the defendant stated that it was his position that the statement had not been given freely and voluntarily. He further stated: "We know the manner in which this confession was had and we know the party who obtained it. We know that the state does not wish to present him in court here to vouch for his word, and that the purpose of this move is to avoid presenting him in court here and to vouch for his word. It is to put the burden upon this defendant rather than upon the state in the first instance to show that this confession was a voluntary one and one that should be received in a court of Law. . . ."

The trial judge then announced that he was of the mind that the statement constituted an admission and not a confession. The court further said: "I don't believe that this question of deciding that this is an admission puts the state in such a position that they can simply offer this document and throw the burden of proof upon the defendant. I don't believe that. I believe that when the state offers this admission, they must offer it with all the surrounding circumstances and evidence under which it was produced, and the defense, of course, have a right to meet that issue, and the question then as to whether or not this admission was voluntarily made is a question for the jury. I don't know whether counsel agrees with me, but that is the ruling of the court."

Defendant's counsel excepted to the ruling. Thereafter, the following proceedings were had in the courtroom in the presence of the jury. Kulis, the detective who had obtained the written statement from the defendant, was called as a witness. After he had been examined at some length (his testimony given before the written statement was offered and received in evidence occupies some 39 pages of the typewritten transcript), the written statement was offered in evidence. Defendant's counsel thereupon interposed the following objection: "That is objected to on the grounds that no proper foundation has been laid for the admission of the exhibit, that it appears from the witness' own testimony that this was not freely and voluntarily given, that it was given under duress at a lonely cabin on the outskirts of Jamestown between the hours of 1:30, after the hours of 1:30 in the morning; that he had a gun with him there present at that time; that this woman was alone with him in that cabin; all of which facts go to show that the same was not freely and voluntarily given; that no proper foundation for its introduction has been had." The objection was overruled and the statement admitted.

At the time the objection was made there was no evidence of any promise by someone whom the defendant believed to be a person in authority, nor was there evidence of any threat. There was no request for leave to cross-examine, or that the ruling be withheld until further proof was made as to the circumstances under which the statement was given. The situation of the parties, the time and the place the statement was made, and the other facts that the evidence then disclosed were not such that it must or could be said as a matter of law that the statement was not made voluntarily. If the same proof that had been introduced up to that time had been presented to the court in the absence of the jury, and the court had held that the statement had been given voluntarily and was admissible in evidence, the ruling could not have been disturbed on appeal. Whether a written statement, which on its face seems to be complete, is so in fact, and should be so treated as evidence, is a matter primarily for the trial court to determine, and in making such determination the court is vested with some discretion. The same is ordinarily true as to a motion to strike evidence. It was for the trial judge to determine whether the written statement was complete in itself or whether it was merely a part of another and larger statement. The "Best Evidence Rule" was applicable to the written statement, and the contents thereof could not have been shown by parol unless the inability to produce the writing was so established as to permit secondary evidence of the contents. 3 Enc. of Evidence, pp. 276, 282; 2 Chamberlayne, Modern Law of Evidence, § 1573. The written statement was offered in evidence on the theory that it was complete. The objection to its admission contained no intimation that there was any contention that it was incomplete. The objection was rather on the theory that it was complete and inadmissible as such because not voluntary. The statement was, in a very real sense, separate from the oral statements that the witnesses for the prosecution testified that the plaintiff made in the course of the conversation during which the written statement was made. The jury might well have believed that the defendant did make the written statement, and at the same time have believed that she did not make any of the oral statements attributed to her. When the defendant subsequently testified in her own behalf, she admitted that she had written and signed the written statement, but as we read the testimony, she did not admit that she made any of the oral statements attributed to her, and which defendant's counsel claims operated to transform the written admission into a confession.

The motion to strike was made after the state had rested its case. The several witnesses for the prosecution had testified as to the conditions and circumstances under which the alleged statements, both oral and written, had been made. If the trial court, instead of adopting the procedure which he did, had heard all of the evidence that had been submitted up to the time the motion to strike was made in the absence of the jury, and had ruled the statements, both oral and written, to be admissible, the ruling could not have been disturbed on appeal.

Appellant's counsel assumes that if the statement constituted a confession, the procedure adopted by the trial court in submitting the question of its admissibility to the jury constituted prejudicial error under the rule laid down by this court in State v. Kerns, 50 N.D. 927, 198 N.W. 698, and he argues that even though it did not constitute a confession, that the character of the admission was such that the same rule should be applied in testing its admissibility and that evidence relating to its admissibility should have been heard by the trial judge in the absence of the jury, and the question determined by the trial judge, and not submitted to the jury; and that consequently, under the rule laid down in State v. Kerns, supra, there must be a reversal.

Counsel's assumption is not warranted by anything that was ruled, or said, in the decision in State v. Kerns. It is true that in the decision in that case this court held that the questions relating to the admissibility of a confession are to be determined by the trial judge. It was shown, however, that many courts have held to the contrary; that some courts have held that where there is a conflict in the evidence touching the matter, the question must be submitted to the jury; that others have held that the question is one determinable by the court, but that the court may properly submit the question to the jury as a matter of grace to the defendant. 50 N.D. 927, 198 N.W. 698.

The procedure that actually had been followed in the trial of State v. Kerns was not that which this court approved. In that case the trial court heard evidence in the absence of the jury, relating to the admissibility of the confession, and after hearing such evidence, stated that he found that the confession had been given voluntarily. At the time this view was announced, the confession had not been offered, nor was it then offered, in evidence. After the court had thus stated its views, the trial proceeded before the jury, and the witnesses who had been examined before the court were placed upon the witness stand and testified at length substantially to the same effect as they had testified before the court. The confession was then offered in evidence and an objection was made on the ground that it had not been given voluntarily. The trial court overruled the objection and the confession was admitted. But the matter did not rest here; the court submitted to the jury the question whether the confession was admissible in evidence at all. The court instructed that the jury should consider all testimony tending to show the circumstances surrounding the giving of "such alleged confession," as "bearing upon whether there was a confession and whether the confession, if made, should be considered by the jury." The court further instructed the jury that if they failed to find that the alleged confession was given freely and voluntarily, they "should wholly disregard such confession," but if they believed that "there were no promises or threats made to the defendant which were fairly likely to produce an untrue confession" then they should consider it with all the other testimony in the case. 50 N.D. 939, 198 N.W. 702. In considering assignments of error based upon these instructions, this court said: "If error there was, it was error in favor of rather than against the defendant, to the extent that the instruction left it for the jury to say whether it was admissible." 50 N.D. 940, 198 N.W. 702. The procedure that was adopted in the trial of State v. Kerns was therefore not in accord with that which this court said was the correct method. The procedure adopted was that which Dean Wigmore has characterized as "unpractical heresy" (2 Wigmore, Evidence, 2d ed. p. 218), as it permits the jury to sit in judgment upon, and review the correctness of, the ruling of the trial court.

It will be seen that this court did not hold, in State v. Kerns, that it necessarily was error prejudicial to the defendant to submit to the jury the question whether a confession had or had not been given voluntarily. On the contrary, it was recognized in that case that the practice adopted was error in favor of the defendant rather than error to his prejudice.

The trial court adopted the view that the written statement constituted an admission and not a confession. He further adopted the view that not any of the statements or admissions made by the defendant against her interest should be considered as evidence unless the state proved that they had been made freely and voluntarily. He further took the position that he would submit to the jury the question whether they were made freely and voluntarily, and that the jury should be instructed to disregard wholly any, or all, statements or admissions that had not been made voluntarily. In carrying out this purpose, the trial court gave to the jury careful and explicit instructions. At the threshold of that portion of the instructions which relates to the alleged admissions of the defendant, the court instructed the jury as follows:

"There has been offered and received in evidence, Gentlemen, in this case, certain testimony by which the state claims that the defendant, Gladys Gibson, has admitted orally and in writing that she shot and killed her husband, Nathaniel Gibson. . . .

"These oral or written statements alleged to have been made by the defendant, Gladys Gibson, have been referred to during the trial of this action rather loosely, sometimes as admissions and sometimes as confessions."

The court then defined "confession" and "admission."

Thereupon, the court instructed the jury that in arriving at their verdict they should not "take into consideration any oral or written statements or admissions or purported or so-called confessions or actual confessions" unless: (1) They found, and believed and were satisfied from the evidence, that they were in fact made; and (2) they found, and believed and were satisfied, that they were made voluntarily; and (3) they found and believed that they are true. Immediately following such instruction, the court charged the jury:

"The burden of proving any admission or statement or so-called or purported confession or actual confession alleged to have been made by the defendant in this case was voluntarily made is upon the state.

"In this connection I charge you that no oral or written statement or admission or so-called or purported confession, or an actual confession of the defendant in a criminal action such as this, can be considered by the jury in passing upon the question of the guilt of such defendant if such oral or written statement or admission or so-called confession or purported confession or any actual confession has been procured or obtained by threats, or by putting the defendant in fear, or by any methods of intimidation, or compulsion, or duress practiced upon such defendant, or upon any promise of immunity or reward held out to such defendant as an inducement for making such admission.

"So in this case if you find from the evidence that any statement or admission or purported confession or so-called confession or an actual confession, either written or oral, made by the defendant Gladys Gibson touching upon the circumstances surrounding the death of Nathaniel Gibson and tending to connect her with his alleged murder, if you find she made any such oral or written statements or admissions or purported confessions or actual confessions, were not her free and voluntary act but were induced or secured by threats, or force, or compulsion, or by putting her in fear, or by any offers or promises of reward or immunity, then you will totally disregard such statements, admissions or confessions thus secured. . . .

"I instruct you that if you find from the evidence in this case that the defendant Gladys Gibson did make any oral or written statements or admissions or purported confessions or actual confessions tending to connect her with the death of Nathaniel Gibson, then I charge you that in determining whether or not such oral or written statements or admissions or purported confessions or actual confessions were in fact voluntarily made or involuntarily made you have a right to and should take into consideration all the circumstances surrounding the making of such oral or written statements or admissions or purported confessions or actual confessions. You should take into consideration the place where they were made; who was present; the time of the day or night; the conduct of all parties at the time; whether or not the defendant was under arrest, whether or not she was in the custody of officers and whether or not she was in jail or elsewhere; the person or persons to whom such oral or written statements or admissions or purported confessions or actual confessions were made; the state of the defendant's mind at the time, if it can be ascertained from the evidence; whether she had or had not consulted with her attorney or attorneys; the reasonable and probable effect upon the defendant of all the surrounding circumstances leading up to and at the time of the making of such oral or written statements or admissions or purported confessions or actual confessions as disclosed by the evidence; and taking all of these matters into consideration determine whether or not such oral or written statements or admissions or purported confessions or actual confessions were in fact voluntarily made by the defendant or whether they were not. If you find that any of them, if so made, were not voluntary, then those you will discard and totally ignore and give them no weight and no consideration in arriving at your verdict in this case. On the other hand if you believe from the evidence that any of them were voluntarily made, then those you may consider in arriving at your verdict and give them such weight as you deem they are entitled to under the evidence and these instructions. But in considering such statements or admissions, you must consider the whole of such statements or conversations together."

These instructions are clear and comprehensive. They gave to the jury the same rules of admissibility as to all statements that the court would have applied if it ruled on the admissibility of a confession. The question as to whether any of the statements made by the defendant were given voluntarily was not one of such complexity as to be beyond the comprehension of the jury, or beyond its capacity to determine by application of the rules submitted by the court in the instructions.

It is not apparent to us that any prejudice to the defendant did result, or could have resulted, from any ruling or action taken by the trial court concerning the statements claimed to have been made by the defendant.

It is next contended that this court erred in holding that objections to the court's instructions were waived because exceptions thereto were not filed by the defendant with the clerk of the district court within twenty days after the instructions were filed. It is conceded that the former opinion in this case is in accord with former decisions of this court upon this question; but it is again argued that these decisions are incorrect and should be overruled. We have again considered the question and are agreed that the former decision is correct.

Unless abrogated by statute, it is the general rule that proper and timely exceptions must be taken in the trial court to the instructions to the jury, and the failure to take such exceptions constitutes a waiver of the right to object. 16 C.J. p. 1070. Generally, and in absence of statute to the contrary, exception must be taken before the jury retires. 16 C.J. p. 1071. This rule prevailed in the Territory of Dakota in both civil (Cheatham v. Wilber, 1 Dak. 335; Code Civ. Proc. D.T. 1867, § 217), and in criminal (Code Crim. Proc. D.T. 1877, §§ 412, 414) cases. The rule was changed in 1877 so as to permit exceptions to be taken in civil actions at any time before the entry of final judgment in the case (Code Civ. Proc. D.T. 1877, § 249; Comp. L.D.T. 1887, § 5049); but it remained as to criminal actions, became the law of this state (N.D. Const. Schedule § 2), and continued in force until the enactment of the Revised Codes of North Dakota, 1895. Rev. Codes 1895, §§ 8178, 8179, 8269.

The provisions of §§ 10,824, and 10,825, Comp. Laws 1913, were originally part of the same legislative enactment. Laws 1893, chap. 84. Prior to such enactment oral instructions were not authorized either in civil or criminal actions. Comp. L.D.T. 1887, § 5048.

Sections 10,824, 10,825, 10,915, Comp. Laws 1913, were enacted in their present form in the 1895 Revised Codes of North Dakota, and have remained in force without change. Rev. Codes 1895, §§ 8178, 8179, 8269; Comp. Laws 1913, §§ 10,824, 10,825, 10,915. These sections were based upon chapter 84, Laws 1893. Before the enactment of said chapter 84, Laws 1893, oral instructions were not authorized in either civil or criminal actions. Comp. L.D.T. 1887, § 5048. Prior to the enactment of the 1895 Revised Codes, appeals did not lie in a criminal action. Review of the instructions to a jury could be had in the supreme court only by writ of error, upon a bill of exceptions, in which the portions of the charge excepted to were distinctly stated. Comp. L.D.T. 1887, §§ 7499, 7502, 7439-7442, 7511. Not only were exceptions to the instructions required to be taken promptly, but it was, also, provided that unless the court otherwise directed, the bill of exceptions, setting forth the exceptions to the instructions, "must be settled at the trial." Comp. Laws 1887, §§ 7439, 7441.

Sections 10,824 and 10,825, Comp. Laws 1913, read as follows:

"Upon the close of the trial all instructions given or refused, together with those prepared by the court, if any, must be filed with the clerk, and except as otherwise provided in the next section shall be deemed excepted to by the defendant. If the charge of the court, or any part thereof, is given orally, the same must be taken down by the official stenographer and shall be deemed excepted to by the defendant, and the same as soon as may be after the trial must be written out at length and filed with the clerk of the court by the stenographer thereof; provided, that in case the defendant is acquitted by the jury the oral instructions need not be transcribed or filed with the clerk. But exceptions in writing to any of the instructions of the court in any manner given, or the refusal of the court to give instructions requested, may be filed by the defendant at his discretion, with the clerk of the court within twenty days after the instructions are all filed as herein provided. The stenographer of the court shall receive for writing out the oral instructions of the court the same fees as for making transcripts."

The court may, in its discretion, submit the written instructions which it proposes to give to the jury, to the counsel in the case for examination, and require such counsel after a reasonable examination thereof, to designate such parts thereof as he may deem objectionable, and such counsel must thereupon designate such parts of such instructions as he made deem improper, and thereafter only such parts of said written instructions so designated shall be deemed excepted to, or subject to exception."

Section 10,822, Comp. Laws 1913, provides that "all instructions must first be reduced to writing, unless by consent of both parties entered in the minutes, the instructions are given orally and taken down by the stenographer of the court, in shorthand."

Section 10,824, supra, recognizes that instructions may be given either in writing, or orally; and it reiterates the requirement of § 10,822, that in case they are given orally, they must be taken down by the official stenographer; and it further provides that, unless the defendant is acquitted, they must be written out at length and filed with the clerk of the court. The section provides that all instructions, given or refused, written or oral, "shall be deemed excepted to by the defendant." As to written instructions, one of two things may be done: (1) The court may submit the instructions which it proposes to give to the counsel in the case, and "require such counsel after a reasonable examination thereof, to designate such parts of such instructions as he may deem improper," supra, § 10,825; or, (2) the court may give the instructions, without such submission. In either case the instructions are required to be filed with the clerk. If the first method is adopted, "only such parts of said written instructions" as counsel designates as objectionable are "deemed excepted to, or subject to exception." Supra, § 10,825. If the second method is pursued, the instructions are all deemed excepted to, and "exceptions in writing to any of the instructions . . . given, or the refusal of the court to give instructions requested, may be filed by the defendant at his discretion, with the clerk of the court within twenty days after the instructions are all filed." Supra, § 10,824. If the instructions are oral, they are all deemed excepted to when given, and if defendant is convicted, they must be written out as soon as may be after the trial, and filed with the clerk of the court, and "exceptions in writing to any of the instructions . . . given, or the refusal of the court to give instructions requested, may be filed by the defendant at his discretion, with the clerk of the court within twenty days after the instructions are all filed." Supra, § 10,824.

The provision in § 10,824, supra, concerning the filing of written exceptions within twenty days after the instructions are filed with the clerk of the court has no application to instructions that are submitted to counsel, and opportunity given to take exception under § 10,825, supra; such provision applies only to instructions in writing given to the jury, and that have not been so submitted, and to instructions that have been given orally and taken down by the official stenographer of the court and transcribed and filed with the clerk of the court.

The provision in §§ 10,824, and 10,915, that the instructions "shall be deemed excepted to" is not inconsistent with the necessity of taking further action to place of record and make effective the exception thus takn by operation of law. See Lambert v. Brown, 22 N.D. 107, 132 N.W. 781; Kleppe v. Odin Twp.40 N.D. 595, 169 N.W. 313. As has been shown, under the law in force when §§ 10,824 and 10,915 were enacted, a defendant in a criminal action who desired to base error upon instructions to the jury was required: (1) To take exception at the trial to any instruction he desired to challenge; and, (2) to preserve and make effective the exception taken by having the same embodied in a duly settled bill of exceptions. Sections 10,824 and 10,915 dispensed with the necessity of taking exceptions to the instructions when they were given. The law says the instructions shall be "deemed" excepted to, that is, they shall be considered "regarded as being" excepted to. 3 Century Dictionary Cyclopedia, New Standard Dictionary, Webster's New International Dictionary. But these sections did not dispense with the necessity of taking further action to preserve and make effective the exception deemed taken, by filing written exceptions to the particular portions of the instructions, which, upon examination of the instructions, were found to be objectionable. If it was the intention that no action need be taken to designate the particular instructions objected to, and that the exception deemed taken was effective as a basis for assignment of error on motion for a new trial or on appeal without further action on the part of the defendant, then the filing of written exceptions would be worse than useless, and it is inconceivable why any such provision was placed in the statute at all. The legislature intended to give a defendant in a criminal action opportunity to examine the instructions before he was required to designate the parts he regarded as being objectionable. So it provided that if the court gave written instructions, the court must either give defendant's counsel a reasonable time to examine the instructions before the charge was given to the jury so that counsel might designate the parts of the instructions he considered objectionable; or if the court did not give defendant's counsel such opportunity to except to the instructions, then the instructions must be filed with the clerk, and defendant, if he so desired, might file written exceptions to such parts as he considered objectionable, within twenty days after the instructions were filed. If oral instructions were given, there would be no opportunity to designate the objectionable instructions before they were given to the jury, and in such case the defendant was given twenty days after the instructions, as transcribed by the official stenographer, have been filed with the clerk of the court to file exceptions in writing to the parts deemed to be objectionable. But the legislature did not intend to permit error to be predicated upon a general exception to the instructions. When the court submits the written instructions to counsel under § 10,825, counsel must "designate such parts of such instructions as he may deem improper, and thereafter only such parts of said written instructions so designated shall be deemed excepted to, or subject to exception." When the court gives oral instructions, or gives a written charge, without submitting the same to counsel for examination before delivery thereof to the jury, the law preserves to the defendant the right to except to any part of the instructions he may deem improper. It would not be possible to designate the parts deemed to be improper, unless reasonable time were given to examine the instructions. So the law says, if you have not had an opportunity to make "a reasonable examination" of written instructions, or if oral instructions are given, then the instructions will all be deemed excepted to, so that you may make "a reasonable examination" before you are required to designate the parts you deem improper. You will be given twenty days after the instructions in writing are filed in the office of the clerk of the court to examine them, and then in your discretion, that is, acting wthout other control than your own judgment (3 Century Dictionary Cyclopedia) you may determine whether you deem any part of the instructions improper, and you may file written exceptions designating the parts you deem improper at any time within such twenty days.

It is argued in the petition for rehearing that we are in error in the former opinion in assuming that the letters from Elnora Donis to the defendant were admissible for any purpose other than to show bias in favor of the defendant, and it is claimed that there were no statements in such letters contrary to the testimony which she had given. As we read the record, the letters were admissible not only for the purpose of showing bias, but also because there was a contradiction between her testimony and the statements in the letters. We quote from her testimony given before the letters were offered and received in evidence:

"Q. Did you ever write to her that your sister had the goods on her and Joe, or something to that effect?

"A. I don't remember.

"Q. You don't remember? A. I don't remember writing anything like it.

"Q. Would you say that you did not write?

"A. I can say I did not write it."

In one of her letters to the defendant, she refers to the fact that her brother, Joe Donis, had been down at Austin, Minnesota, and that while there he had talked with their sister (Mickey). She then says, "When Joe was down here and told her all about Than, she said, `He knows darn well I got a lot on him and G.'" We adhere to the statement made in the former opinion: "In so far as the argument of the state's attorney called to the attention of the jury the contradiction between the testimony of Elnora Donis upon the trial and the statements formerly made in her letters; and in so far as he called to the attention of the jury the bias and interest of Elnora Donis in favor of the defendant as evidenced by the statements in her letters; and in so far as he questioned the credibility of Elnora Donis and the weight to be given to her testimony, the argument was wholly proper."

Appellant next contends that it was the duty of the court to instruct the jury that the letters written by Elnora Donis to the defendant could be considered only for the purpose of impeachment of the testimony of Elnora Donis, and that it was prejudicial error for the court to fail to do so, even in the absence of a request. It is the general rule in this state that nondirection is not prejudicial error unless it amounts to misdirection. See State v. Guffey, 39 S.D. 84, 163 N.W. 679; State v. Haynes,7 N.D. 352, 75 N.W. 267; State v. Rosencrans, 9 N.D. 163, 82 N.W. 422; State v. Glass, 29 N.D. 620, 151 N.W. 229. The instructions to the jury in no manner gave the jury to understand that the letters could be considered for any purpose other than in passing on the credibility of Elnora Donis, and the weight to be given to her testimony. At the time they were admitted in evidence, the court clearly stated that was the purpose for which they were admitted. Nothing was said in the instructions from which any inference might be drawn that there had been any departure from the views expressed by the court at the time the letters were received in evidence.

It is claimed that this court erred in holding in the former decision that no prejudicial error was committed by the trial court in admitting evidence as to the statements made by the defendant at the coroner's inquest. It is again argued that the admission of this evidence violated the constitutional guaranty against self-incrimination. It is also argued that it was error to permit the court reporter who took down the testimony in shorthand at the inquest to testify as to the statements then made. It is said the transcript of the testimony constituted the best evidence and that the testimony of the reporter was inadmissible. We have again considered the question, and are satisfied with what was said in the former opinion concerning the question whether the admission of the testimony given by the defendant upon the coroner's inquest violated the constitutional guaranty against self-incrimination. There was no violation of such constitutional guaranty.

As shown in the former opinion, after the reporter had given testimony, the defendant offered in evidence the entire transcript of all the testimony given by the defendant at the coroner's inquest. The testimony of the reporter was in fact given from such transcript, as he used the transcript for the purpose of refreshing his memory. We know of no valid reason why the reporter might not testify to statements made upon the coroner's inquest, and use his notes for the purpose of refreshing his memory. In any event, the transcript itself was offered and received in evidence. There is no contention that there is any variance between the testimony of the reporter as to the statements made by the defendant at the coroner's inquest and the transcript of her testimony subsequently offered in evidence by the deefndant and received in evidence without objection, and the record discloses there was no variance.

It is contended that the construction placed on § 9459, Comp. Laws 1913, is incorrect; and it is again argued that the statute requires that both the death of the person alleged to have been killed and the further fact that the death was produced through a criminal agency must be established by direct proof, and that even though the fact of death has been established by direct proof, the confession or admission of the accused is not admissible to prove that the death was produced through a criminal agency. We have again considered this question, and adhere to the views expressed in the former opinion.

Finally it is said that this court "failed to consider the cumulative effect of the errors which it recognized," and that "where there is reasonable ground to doubt that on the whole record the defendant had a fair trial, a new trial should be granted."

As shown in the former opinion, and in this opinion, this court has considered not only the questions properly preserved for review in the trial court, and presented on this appeal, but we have examined the record upon which assignments of error not so preserved and presented are based. The entire record has been read and reread. The case has been argued twice. In view of the importance of the case, the length of the record, and the questions raised, counsel were not limited as to time. Extended briefs were filed, and leave was granted to file additional briefs. Every question presented was considered with much care and deliberation before the former decision was made; it has again been considered on the petition for rehearing. The members of this court have given to this case their most anxious thoughts and labor, and have reached the conclusion that the defendant had a fair trial.

There was only one question at issue: Did the defendant fire the shot that killed her husband, Nathaniel Gibson? When the case went to the jury, the evidence was such that honest, intelligent, and reasonable men could reach only one of two conclusions: either the defendant fired the shot, or Nathaniel Gibson committed suicide.

In the briefs, and on the oral argument in this court, defendant's counsel contended with much earnestness and ardor that Nathaniel Gibson committed suicide. The record discloses that the same contention was made in the court below, and (as is shown in the former opinion) considerable evidence was adduced by the defendant for the sole purpose of showing that the deceased had committed suicide. In view of the prominence this phase of the case was given, there might have been some danger that the jury, or some members thereof, might have inferred that some burden rested upon the defendant to establish the fact, which she had introduced evidence tending to establish. The court took care to give instructions to insure that the jury might not be led astray to the prejudice of the defendant. We quote from the instructions:

"The theory advanced by the defense in this case is that the said Nathaniel Gibson took his own life and that he committed suicide by shooting himself with the revolver.

"Now, I charge you that it is not your province in this case to determine whether or not Nathaniel Gibson committed suicide or whether he came to his death in some other manner than that charged in the information against the defendant, but your sole duty is to determine the one and single question, and that is, whether or not the defendant Gladys Gibson fired the shot which killed her husband and whether she did it intentionally, feloniously, with premeditation and with malice aforethought.

"I further charge you that no duty rests upon the defendant in this case to prove that Nathaniel Gibson took his own life or to prove how Nathaniel Gibson was killed. The defendant having entered a plea of `not guilty' in this case casts upon the state the burden of establishing to your satisfaction beyond a reasonable doubt that the defendant Gladys Gibson killed her husband in the manner charged in the information and that she did it wilfully, intentionally, unlawfully, feloniously, with premeditation, and with malice aforethought.

"So, Gentlemen of the Jury, the first question which you must answer when you retire to your jury room is this: Did the defendant Gladys Gibson fire the shot from the 32-caliber revolver on the 5th day of December, 1933, which the state alleges killed her husband Nathaniel Gibson? If the state has failed to establish that fact to your satisfaction beyond a reasonable doubt, then I charge you that you need go no further in your deliberations and it would be your duty to return a verdict of `not guilty.'"

The trial of this case occupied in all some eighteen days. The transcript of the proceedings fills eight volumes contining more than twenty-three hundred pages of typewritten matter, exclusive of the court's instructions to the jury and some documentary evidence. In the opinions in this case, reference has been made to the incidents at the trial upon which error has been predicated. When the case is considered as a whole, it evinces on the part of the trial court a careful and painstaking consideration for the rights of the defendant and care in safe-guarding those rights under the law as the trial court interpreted and applied it. There was presented to the jury, forcibly and clearly, the one question: "Did the defendant, Gladys Gibson, fire the shot that killed her husband Nathaniel Gibson?" The attention of the jury was focused upon this single question. The jury, selected at a place and under circumstances tending to obtain triers of fact free from passion and prejudice, answered this question in the affirmative, and they gave to the defendant the benefit of any doubt they may have had as to the degree of the offense. After carefully considering all the questions presented in the petition for rehearing, we reach the same conclusion that we did in our former opinion: "When the case is considered as a whole, as it went to the jury, it does not appear at all probable, that anything that was said, or done, upon which error has been predicated could, or did, affect the verdict. Upon the record presented on this appeal, we are of the view that the cause was presented to the jury fully and fairly. The jury, after careful consideration, deliberately reached the conclusion that the defendant fired the shot which resulted in the death of Nathaniel Gibson, and we are all of the view that the evidence was sufficient to justify twelve intelligent, honest, and reasonable men, in the exercise of reason and judgment, in returning the verdict which they did return."

The petition for rehearing is denied.

NUESSLE, Ch. J., and CHRISTIANSON, BURR, and MORRIS, JJ., and HOLT, Dist. J., concur.