author: GRIMSON, Judge.

text:
    MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, a foreign corporation, Plaintiff and Respondent, v. William DUVALL, also known as W. Duvall, Defendant and Appellant.
    No. 7432.
    Supreme Court of North Dakota.
    Nov. 12, 1954.
    Rehearing Denied Jan. 7, 1955.

      J. K. Murray, Bismarck, for appellant.
    Kelsch & Scanlon, Mandan, for respondent.
   GRIMSON, Judge.

This is an action to determine adverse claims to parts of Lots 7 to 17 and of the east 20 feet of Lot 18, Block 29, Governor Pierce Addition to the city of Bismarck. Plaintiff brings the action to have a sublease covering a part of these premises claimed by the defendant declared null and void. Defendant asks that said sublease be adjudged valid. The district court found for the plaintiff. Defendant appeals, and asks for a trial de novo.

It is admitted that the plaintiff is the owner in fee of the real estate in question, a part of its right-of-way in Bismarck, N. Dak. On May 1, 1950, the plaintiff leased the said premises to one F. H. Schmitt “to have and to hold for the term of one year from the date hereof, and thereafter from year to year, * * The property was to be used for the purpose of constructing a building thereon to be “exclusively occupied and used by the lessee during the terms of this lease * * * for the conduct upon the premises in an active and substantial way of a bulk oil and filling station business, or such other kind of business as may be approved by the lessor.” The lease further provided that:

“(16) This lease shall not be assigned or in any manner transferred by the lessee, voluntarily or involuntarily, by operation of law or otherwise, or the leased premises or buildings thereon sublet, used or occupied for the conduct of any business by any third person or corporation, or for any purpose other than herein authorized, without the written consent of the lessor.”

In spite of these provisions of the lease Mr. Schmitt and the defendant without the consent of the plaintiff entered into a sublease on July 2, 1950, whereby Schmitt leased to the defendant a part of this ground “for the purpose of constructing a cafe building 24 x 32 feet which is to be constructed by said first party (DuVall) and operated by him.” This sublease was for a term of five years, with option of renewal by the defendant.

Soon thereafter the defendant commenced the construction of a building upon the premises involved.

As soon as the erection of this building came to the attention of Mr. Spielberger, the Bismarck general agent of the plaintiff, he, on August 8, 1950, wired the plaintiff asking whether the Schmitt Oil Co. Inc. had permission to erect a restaurant on this property. He received an answer the next day: “No permission ever granted Schmitt Oil Co., to establish a restaurant building on their leased site. Please see that any further construction is stopped and let me have a full report in the matter by first mail.” On Aug. 9, 1950, Mr. Spielberger replies: “On receipt of your wire, I instructed Schmitt Oil Company to discontinue further construction of this building. Mr. Schmitt advised that he would finish the building and use it for an office or a warehouse if he could not use it as a restaurant.” In reply on August 11, Mr. Spielberger received the following instruction: “It must be thoroughly understood that we will not allow operation of a restaurant on our property. If Mr. Schmitt wishes to convert this building into a warehouse or office purposes there will be no objection from this department.”

Further correspondence and negotiations seem to have been had between the officers of plaintiff and Mr. Schmitt. No consent, however, was given by the plaintiff to the operation of a restaurant in this building erected by the defendant. The defendant himself had no negotiations with the plaintiff or its agents. He never asked plaintiff’s consent to his operation of a cafe on the right-of-way. However, when the building was finished, he did open a cafe there which he operated up to the time of the trial of this case.

The evidence indicates that Mr. Schmitt got into some financial troubles. He assigned his lease to the Skelly Oil Co. His business was incorporated under the name of Schmitt Oil Co. Inc., of which Mr. W. W. Oliver became Secretary and Treasurer.

The plaintiff continued to insist the cafe be removed from the premises. Upon the assurance of Mr. Oliver that the cafe would be removed by January 1952, the plaintiff, on August 1, 1951, entered into a lease for a bulk oil and filling station on the premises with Schmitt Oil Co. Inc., on identically the same terms as the original lease to F. H. Schmitt. This lease, on August 28, 1951, was assigned to Skelly Oil Co., for security purposes. The business of the Schmitt Oil Co. Inc., was sold to the Skelly Oil Co., in April 1952. The plaintiff repeatedly insisted that the Schmitt Oil Co. Inc. and the Skelly Oil Co. remove the defendant’s cafe business from the premises. The plaintiff refused to make a lease to the Skelly Oil Company for the premises in question until the restaurant business was removed.

Finally, in March 1952, the Schmitt Oil Co. Inc. served on the defendant a notice to quit and thereafter commenced an action against defendant to quiet title to the premises against his lease with Schmitt.- Plaintiff tried to intervene in that action but was denied permission. That action was never tried. Thereupon this action was started Nov. 14, 1952.

Defendant contends that the lease between plaintiff and the Schmitt Oil Co. Inc. was still in force at the commencement of this action and that the plaintiff had no right to by-pass that lease and the Schmitt Oil Co. Inc. to bring this lawsuit directly against the defendant, the sublessee of the Schmitt Oil Co. Inc. He contends that the Schmitt Oil Co. Inc. lease would first have to be terminated and that that can not be done in an action to quiet title.

It is true that there is no privity of contract between the plaintiff, the original lessor of the premises, and the defendant sublessee. 32 Am.Jur., Landlord and Tenant, Sec. 423, p. 342. Whatever rights the defendant' obtained under his 'sublease are gained through the rights of the sublessor, F. H. Schmitt, under his lease from the plaintiff. Merchants’ State Bank v. Sawyer Farmers’ Cooperative Association, 47 N.D. 375, 182 N.W. 263, 14 A.L.R. 1353. But the termination or forfeiture of the original lease terminates the sublease. In Hawley Corp. v. West Virginia Broadcasting Corp., 120 W.Va. 184, 197 S.E. 628, 629, 118 A.L.R. 120, it is said:

“A sublease creates no privity of contract between the landlord and the' sublessee. The latter’s estate is but parcel of the lessee’s estate, and is subject to the conditions imposed thereon by the principal lease. Its forfeiture terminates likewise the sublease.” See also 32 Am.Jur., Landlord and Tenant, Sec. 422, p. 341; 51'C.J.S., Landlord and Tenant, § 48, page 578.

Both the leases from the plaintiff to Schmitt and the Schmitt Oil Co. Inc., were limited to the “term of one year from date hereof and thereafter from year to year, * 4c * »_ That is a definite term of one year with permission to renew such leases annually thereafter for an indeterminate time.

What was said by Judge Bronson in Northern Pacific Railroad Company v. Bismarck Commission Co., 41 N.D. 490, 171 N.W. 623, 624, applies in the instant case, to wit:

“As a tenancy from year to year, there existed a demise of the premises 'for the current year with the privilege of a recurrent period, unless terminated by notice as provided for in such cases, or as otherwise changed by statutory rule.”

In Wadsworth v. Owens, 21 N.D. 255, 130 N.W. 932, 933, this court held that:

“The landlord may elect, when a tenant continues in possession after the expiration of his lease, to treat the tenant as a trespasser, or as holding under the lease of the former year.” See also Merchants’ State Bank v. Ruettell, 12 N.D. 519, 97 N.W. 853; Kennedy v. City of New York, 196 N.Y. 19, 89 N.E. 360, 25 L.R.A.N.S., 847; Haynes v. Aldrich, 133 N.Y. 287, 31 N.E. 94, 28 Am.St.Rep. 636; Mason v. Wierengo’s Estate, 113 Mich. 151, 71 N.W. 489, 67 Am.St.Rep. 461.

In Smith v. Pritchett, 168 Md. 347, 178 A. 113, 115, 98 A.L.R. 212, the court said:

“While a tenancy from year to year may arise after the expiration of a tenancy for years, it is a new renting which begins upon the expiration of the tenancy for years, either because the landlord and tenant have so expressly agreed or the law has made a similar implication should the tenant continue in possession, without further contract for another year, by consent of his landlord.”

In the instant case the lease to F. H.^ Schmitt was dated May 1, 1950, and the one year provision therein expired May 1, 1951. No renewal thereof was made. On the assurance of Mr. Oliver, Secretary-Treasurer of the Schmitt Oil Co. Inc., that the res7 taurant on the premises would be removed, plaintiff issued a lease to the Schmitt Oil Co. Inc., on Aug. 1, 1951, three months after the expiration- of the Schmitt lease. That lease also was for one year expiring Aug. 1, 1952. On the assignment of that lease and the sale of the Schmitt Oil Co. Inc. business to the Skelly 'Oil Company in April 1952, a request was made to the plaintiff for a new lease to that company. No such lease was granted pending the removal of the defendant’s restaurant business from the premises. The interruption of the continuity of the leases, the negotiations regarding a new lease and the conditions imposed for a new lease, overcame the presumption that the continued occupancy of the premises by the oil companies effected a renewal of the Schmitt Oil Co. Inc. lease. Foster v. National Tea Co., 74 N.D. 37, 19 N.W.2d 760.

The refusal of plaintiff to renew the lease for the oil station was caused by the breach by Schmitt of the clause in his lease from the plaintiff restricting the use of the premises to a bulk- oil and service station. His sublease to the defendant provided for operation of a restaurant on the premises. Section 47-1611 NDRC 1-943 provides: "When real property is leased for a particular purpose, the lessee must not use it for .any other purpose. If he violates the lease in this respect the lessor * * * may tréat the contract as rescinded thereby.” 1 Plaintiff was attempting to have the restaurant removed rather than exercising his right of rescission and the termination of the lease for that breach.

The defendant claims', however, that the lease from plaintiff to Schmitt contains restrictions only against the assignment of the lease and against the subletting -of the buildings on the premises. He claims that the subleasing of a portion of the lot's for a building site was permissible under that provision of the lease so that there was no breach thereof. The provision in the lease is that “the leased premises or buildings thereon” shall not be sublet. That refers to the whole premises. The whole includes all parts of that whole. The provision against subletting the premises includes any part thereof. “The greater contains the less” is a maxim of jurisprudence. Section 31-1105(27) NDRC 1943. The defendant’s interpretation of the original lease in that regard cannot be sustained. ■

During the negotiations for the ouster of defendant plaintiff received rental payments from Schmitt- and the Schmitt Oil Co., Inc., on the promise that the restaurant would be removed. When that was' not done and the plaintiff, in August 1952, learned the terms of the lease from Schmitt to defendant, it refused to accept anymore payments of rent and refused to recognize-the Schmitt Oil Co. Inc. as a tenant or to give a lease to the Skelly Oil Co. By these actions the plaintiff rescinded arid terminát-ed the Schmitt Oil Co. Inc. lease. By the termination thereof the sublease from Schmitt to the defendant was also terminated. Plaintiff served notice on the defendant on Aug. 14, 1952, that he' was a trespasser ■on the premises described in his sublease.

At the commencement of this action there were no leases in effect covering the premises involved. The interests of plaintiff and, defendant .were adverse and could.properly.be determined in an action to quiet title. Udgaard v. Schindler, 75 N.D. 625, 31 N.W,2d 776.

“The- right of the sublessee to the possession of the premises as against the original lessor terminates with the lease or term of the original lessee, and since a subtenant holds the premises subject to the performance of the terms and conditions impressed upon the estate by the provisions of the original. lease, his rights are generally held to be terminated when the original lessor declares a forfeiture of the original lessee’s term based upon the latter’s non-performance of obligations imposed on him. Thus, if the original tenant has incurred a forfeiture of his lease, and for that reason the landlord annuls the lease, the landlord is entitled to the possession as against the sublessee.” 32 Am.Jur., Landlord and Tenant, Sec. 424, p. 344.

The defendant next claims that the plaintiff is estopped from asserting the expiration of the Schmitt leases or the invalidity of the sublease. In support of this he contends that the .plaintiff with knowledge of the violation of its lease to Schmitt continued to accept rents from Schmitt and the Schmitt Oil Company, Inc., and that Schmitt and the Schmitt Oil Company, Inc. continued to accept rent from the defendant. He claims the plaintiff thereby not only waived all violations of the provisions in its lease to'Schmitt, but that such waiver estopped the plaintiff from claiming the sublease invalid.

It is true that Schmitt paid the annual rent for the year during which the lease was in his'name and also that the Schmitt Oil Company, Inc. paid the rent during the time its lease was in existence. These payments were received with the understanding that defendant’s restaurant would be removed from the premises, and were refused as soon as plaintiff was fully informed of defendant’s sublease. Defendant was informed that plaintiff insisted on the removal of his restaurant. Defendant never paid any rent to plaintiff and on plaintiff’s insistence the Schmitt Oil Co. Inc. refused to accept payments of rent from him after May 24, 1952. There is no evidence of any rent being paid by the Shelly Oil Company.

Clearly the evidence shows plaintiff’s continued intention to rely on the provisions against subleasing for purposes other than as permitted by the lease to Schmitt and its insistence that that provision be observed.

In Meyer v. National Fire Insurance Co., 67 N.D. 77, 90, 269 N.W. 845, 852, this court cites with approval Sec. 792, Bishop on Contracts as follows:

“ ‘ “Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistently with existence of the right, or his intention to rely upon it.” ’ ” See also 51 C.J.S., Landlord and Tenant, § 34, page 546.

Waiver of the right to hold defendant’s lease invalid cannot be inferred from acceptance of rent under the circumstances shown in the evidence. Payments of rent is the only evidence offered by defendant to sustain his claim of estoppel.

Furthermore, the evidence shows that the defendant’s actions were not in any way induced by the fact that the plaintiff had accepted some payment of rent.

The defendant knew that Schmitt had only a lease of the premises. While he claims that he had not seen Schmitt’s lease from the plaintiff he is presumed to know the conditions'thereof. In Merchants’ State Bank v. Sawyer Farmers’ Cooperative Association, supra, 47 N.D. 375, 182 N.W. 266, this court held that “An assignee of the tenant is presumed to be acquainted with the terms and stipulations of the lease”. In Brock v. Desmond & Co., 154 Ala. 634, 45 So. 665, it is held that: “A subtenant is chargeable with notice of the contents of the original lease.” See also Cesar v. Virgin, 207 Ala. 148, 92 So. 406, 24 A.L.R. 715; Handleman v. Pickerill, 84 Cal.App. 214, 257 P. 890; 32 Am.Jur. Landlord and Tenant, Sec. 422, p. 341, 51 C.J.S., Landlord and Tenant, § 48, page 578.

Moreover, defendant had been actually told that the consent of the plaintiff was necessary for the validity of such a sublease. As soon as Schmitt’s oil station was in operation he and the defendant consulted with Clifford Jansonius, Schmitt’s attorney, about entering into a sublease and were informed by him that such a lease would not be valid without the consent of the plaintiff under the terms of Schmitt’s lease and told them to see Mr. Spielberger, local agent of the plaintiff. Then when Mr. Oliver took charge of the Schmitt business in April 1951, he talked with the defendant and told him that the plaintiff would not lease the premises to Schmitt Oil Co. Inc. unless the restaurant was removed. The defendant admitted that Mr. Oliver told him that the plaintiff insisted on the removal of the restaurant from the premises.

In spite of the knowledge he obtained from Mr. Jansonius, defendant never asked the plaintiff or any of its agents for a consent to his operation of a restaurant upon the premises. Even though some of them were on the premises and conversed with him, defendant never disclosed his sublease. When the plaintiff’s agents first found out about the proposed restaurant Schmitt seems to have taken the responsibility for the building and told the officers that if a restaurant could not be allowed in the building, he would use it for an office or for storage purposes. Clearly Mr. Schmitt knowingly violated his lease from the plaintiff and the evidence points to the conclusion that the defendant participated therein. Mr. Schmitt and the defendant apparently took a chance to get by without the consent of the plaintiff. Defendant was not induced to build and operate his restaurant by anything the plaintiff had done. Whatever detriment he suffers is of his own making. To constitute equitable es-toppel there must have been an admission,, statement, concealment or act by the plaintiff, inconsistent with the claim now asserted by him and an action by the defendant to his prejudice on the faith of such admission, statement, concealment or act. Werner v. Werner, 74 N.D. 565, 23 N.W. 2d 757; Loff v. Gibbert, 39 N.D. 181, 166 N.W. 810; City of Williston v. Ludowese, 53 N.D. 797, 820, 208 N.W. 82; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223. Defendant has not shown any estoppel against the plaintiff’s claim that the sublease he obtained from Schmitt was invalid.

The district court found that the sublease granted the defendant by F. H. Schmitt was in all things null and void as against the plaintiff and quieted plaintiff’s title to the premises against such sublease.

The plaintiff claimed no right,.title or interest in the restaurant building erected by the defendant and the district court gave the defendant the right to remove said building without any damage to plaintiff’s property.

The judgment of the district court is affirmed.

MORRIS, C. J., and BURKE, JOHNSON, and SATHRE, JJ., concur.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    STATE of North Dakota, Plaintiff and Respondent, v. Oscar WHITEMAN, Jr., Defendant and Appellant.
    Cr. 258.
    Supreme Court of North Dakota.
    Dec. 18, 1954.

      W. C. Lynch, Associate of Strutz, Jan-sonius & Fleck, Bismarck, N. D., for defendant and appellant.
    Paul Benson, Atty. Gen., J. K. Murray, Sp. Asst. State’s Atty., Bismarck, and H. L. Malloy, State’s Atty., Dunn County, Halliday, N. D., for plaintiff and respondent.
   JOHNSON, Judge.

On January 17, 1953, at ten o’clock a. m., the defendant, Oscar Whiteman, Jr., entered a plea of guilty to -murder in the first degree before the district court of Dunn County, North Dakota. After the entry of this plea, the court questioned the defendant concerning the facts and circumstances involved in the crime charged against him of murder in the first degree of Cynthia Starr. Upon" the conclusion, of the questioning of the defendant, he was sentenced for the crime of murder in the second degree and ordered to serve thirty years in the state penitentiary at Bismarck, North Dakota.

On March 10, 1954, this defendant filed a motion to set aside the judgment of conviction rendered against him, to allow him to plead anew, enter a plea of not guilty, and to defend the action. The motion came on for hearing on March 19, 1954, before the Honorable Harvey J. Miller, District Judge, Dunn County, North Dakota, who had .imposed sentence on the defendant January 17, 1953.

After consideration of the motion and the evidence introduced in support thereof and consideration of briefs, bn .March 31, 1954, the court entered an order denying the motion. The instant appeal is from the denial of the motion. The grounds upon which the defendant asks relief are:

“1. That the judgment of ..conviction in the above captioned action was obtained by reason of fraud and coercion, deceit, duress and other actions prejudicial to and overriding and destroying the free will of said defendant, and was perpetrated upon said defendant by the law enforcement officials of Dunn County, North Dakota, by mob violence, and other individuals; that therefore such judgment and decree was and is absolutely void.

“2. That new evidence has .been discovered which is material to the defendant, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.

“3. That the defendant, Oscar White-man, Jr., was not furnished legal counsel, .as guaranteed by the constitution of the United States, and the constitution of the State of North Dakota, and that therefore the imprisonment of the defendant is illegal and void.”

A similar motion had been heard before the same court in the case of North Dakota against Donald Malnourie, defendant, on May 27 and 28, 1953.

It was stipulated at the hearing on the motion in the case at bar:

“That all of the evidence and testimony introduced and received at the said hearing on the motion of Donald Malnourie and as submitted as a part of said motion, shall be considered as having been introduced and shall be received without objection at the said hearing on the motion of Oscar White-man, Jr., on March 19, 1954, and that ■the said testimony of witnesses given .at the Malnourie hearing would be the ■same if called upon to testify in the instant hearing on the motion of Oscar Whiteman, Jr.
“That the following documents shall %e received without objection of counsel for the State of North Dakota on the motion of Oscar Whiteman, Jr., defendant in the above captioned action:
“1. Affidavit of Oscar Whiteman, Jr.; • ■
“2. Affidavit of Charlotte Logan;
“3. Certified copy of Pathological Report of the examination by Dr. Kling;
“4. Certified copy of Autopsy Report of A. R. Gilsdorf, M.D.;
“5. Signed statement of Samuel Meyers, duly witnessed;
such certified copies of pathological report and autopsy report having each been certified to by M. A. Olson, Dunn County Coroner.”

On the basis of the above stipulation, all of the proceedings and evidence in the case of State of North Dakota against Donald Malnourie is considered in connection with the motion of the defendant in this case.

There are primarily two contentions to be considered in this case:

1. Whether the judgment of conviction was obtained by fraud, coercion, deceit, duress, or other actions prejudicial to and overriding and destroying the free will of the defendant perpetrated by the law enforcement officials of Dunn County by mob violence and by other individuals, thereby rendering the judgment of conviction void.

2. Whether the defendant, Oscar White-man, Jr., was denied counsel as guaranteed by the constitution of the United States and the State of North Dakota, and that therefore his conviction is illegal and void.

This last consideration involves examination of the entire record to determine whether the defendant freely and understandingly waived counsel.

The procedure on this motion is not challenged. It is similar to the procedure that was used and approved in State v. Magrum, 76 N.D. 527, 38 N.W.2d 358.

In order to dispose of the first contention of the defendant, it is necessary to examine in detail the basic facts in the treatment of the defendant which resulted in an alleged confession by him dated January 10, 1953.

This defendant was arrested on January 7, 1953, and brought to Halliday, North Dakota, where he, together with Donald Malnourie, was subjected to extensive questioning. Late in the afternoon of January 9, 1953, this defendant and Donald Malnourie were taken by the sheriff and other law enforcement officers of Dunn County to a place known as the “Big Flat Schoolhouse”. The State’s Attorney of Dunn County had no part in the questioning of this defendant at Halliday, nor was he present or involved in the incident that took place at the Big Flat Schoolhouse.

The questioning of Malnourie and this defendant had been conducted by three or four men. One of the participants was highway patrolman, Lynn Amsden, who assisted the officers of Dunn County in the investigation of the death of Cynthia Starr and the location of her body. The officers of Dunn County principally involved in the investigation were Jack Pavlenko, sheriff, Dunn County, Leo Lesmeister, his deputy, Ben Kills Thunder, chief of police on the Berthold Indian Reservation, and M. A. Olson, Dunn County Coroner. They were all present at the incident at the Big Flat Schoolhouse. It is apparent from the testimony that little, if any, progress had been made to procure any information from either Malnourie or Whiteman concerning the death of Cynthia Starr up to and including the late afternoon of January 9, 1953.

Although the evidence is not clear as to how much information had been obtained by the officers of Dunn County from White-man by the afternoon of January 9th, there must have been some indication during the questioning that the body of Cynthia Starr might be located near the Big Flat Schoolhouse.

In an effort to attempt to locate her body, these two men had been taken eight or ten miles south of Halliday to a foundation designated as “Big Flat Schoolhouse.” Mr. Amsden testified that he estimated that the crowd present there, somewhere between four and five o’clock on the afternoon of that day, numbered from ten to thirty people. There were quite a number of cars at the scene. Just as Mr. Amsden parked, “there was quite a fuss broke out”. At a distance of some seventy-five to one hundred feet he saw the sheriff, Jack Pav-lenko, strike Malnourie. He also saw that Mr. Olson, the coroner, held Malnourie by the shoulders, was shaking him, pulling him, and hollering at him. He saw the sheriff strike Malnourie twice. A wrecker was out at the scene which belonged to a garage at Halliday. A chain was produced. The wrecker was equipped with a winch cable. The winch cable was tied to one arm of the defendant, Oscar Whiteman, Jr., who goes by the nickname of “Tony”. His other arm was tied with the chain to a post. In connection with the chain incident, the testimony of Mr. Amsden at one point indicates that there may have been some movement to procure the tightening of the winch cable after Whiteman’s arms had been tied to it. Statements were made to Whiteman to tell where the body of Cynthia Starr was located or they would tighten the cable. As Mr. Amsden put it, he, referring to Whiteman, “was told that he had better talk or he would be torn apart.” Apparently Mr. Amsden thought that this was going too far and he claims that he told the fellows that they better stop, “these two boys were going to the penitentiary anyway and there was no use of some of them going with.” He also stated that in addition to striking Malnourie twice, the sheriff, in an effort to hit him, missed once; that he saw Malnourie fall down once. After Mr. Amsden interceded in connection with this incident, the sheriff and his party took Malnourie and White-man back to Halliday to the city hall where they were both extensively questioned. The questioning was in the presence of the same officers and the others who had exhibited hatred and hostility towards the prisoners at the incident on January 9 at the Big Flat Schoolhouse.

After the incident mentioned, and during the-subsequent questioning at the city hall, Mr. Amsden is fairly certain that Oscar Whiteman, Jr., late that evening told the crowd there that there was more to the killing of Cynthia Starr. From this it may be inferred, although the evidence does not definitely disclose what was said by this defendant, that he had told something that would indicate that the body of Cynthia Starr was located someplace in the vicinity of the Big Flat Schoolhouse. The information obtained in that connection must have been the basis for the trip to the Big Flat Schoolhouse on the afternoon of January 9, 1953.

The evidence discloses that the questioning after the incident referred to was extensive, went beyond the limits of reasonable persuasion in an atmosphere that was “hostile” and showed “hatred” toward both Malnourie and Oscar Whiteman, Jr. Remarks of such hostility and hatred were made, such as “Give him to the Indians (referring to Malnourie); they will make him talk,” or “Burn him at the stake,” or “Make him talk”. Mr. Amsden even admits, “but I could even be guilty of making a statement as to what should be done to him”, referring to Malnourie. All of this testimony comes from a law enforcement officer connected with the investigation of the death of Cynthia Starr and the location of her body. It would only be reasonable and human for an officer involved in an incident of this character to give a version thereof which would be as mild as possible without being untruthful in its essential details. Mr. Amsden not only testifies to the acts of violence committed at the time of the incident, but also in Exhibit D in this case, testified to promises made by the sheriff of Dunn County to the defendant, Oscar Whiteman, Jr.

The description of the acts that took place at the scene of the Big Flat Schoolhouse incident is corroborated by Samuel Meyers, a tribal business counsel for the Berthold Reservation. He recalls the incident of the day as having taken place at about five o’clock in the afternoon. He was attempting to locate the searching party who were looking for the body of Cynthia Starr. When he came upon the scene, he saw both Donald Malnourie and Oscar Whiteman, Jr., there. He saw a bunch of men and two Indians, Malnourie and Whiteman. He also saw Mr. Amsden there. He had some ladies in his car and Mr. Amsden told him, “You better move these ladies out of here.” When he first drove up and got out of his car, he saw that they were striking one of the suspects, either Malnourie or Whiteman. Later he testified that he saw both knocked to the ground. He says that Malnourie was knocked to the ground three times. He was hit on the face. He also saw the wrecker truck and described the use of the chain as follows:

“Q. Would you tell the court what part that wrecker truck played in the events that followed? A. Well, after the two didn’t tell where the body was, one man of the group said, ‘All right, get the chain.’ And one of the men got the chain out of the pickup and tied that chain around the post, fence post, that is.
“Q. And what did they do with the other end of the chain? A. And tied it around the body of Oscar White-man, Jr.
“Q. Was it aroundi his body or around his arm, do you know? A. Around the arm.
“Q. Did they do anything with the other arm? A. Yes, sir. They backed the wrecker up and took the hoist and tied the other end of the arm to the hoist.
“Q. Did you hear anything said by any person while that was being done and such statement being directed to Oscar Whiteman, Jr.? A. Yes; they were going to stretch him.”

The testimony then shows that the threat to stretch him was made because he did not tell where the body was located.

After the conclusion of the incident and before the departure of the sheriff and suspects and other members of the group for the return to Halliday, Mr. Meyers was given permission to talk to both Mainourie and Whiteman. He took Malnourie aside and asked him “if he wouldn’t tell the truth, what he knew”. Malnourie replied, “I don’t remember.” Then he talked to Whiteman and he said that he had “told everything that he knew.”

During the time that the witness was at the scene, he found it necessary to go back to his car and when he returned close to where the group of men were located he saw both Malnourie and Whiteman struck, although he says that Malnourie was struck “most”, probably three or four times. He described the effect that this had on Mal-nourie and says that Malnourie begged not to be hit any more and said, “Don’t hit me any more.”

The attitude of the crowd towards the prisoners at the Big Flat Schoolhouse was termed, “Well, I’d say hatred.”

There is further corroboration of the treatment of the prisoners at the Big Flat Schoolhouse from Mrs. Cecelia Mason. She saw Whiteman lying on the ground and says, “They had struck him down.” She sat in her car listening and looking and heard, “them guys cussing them down and, and then every time they were going to strike them boys, well, I didn’t want to look.” She heard Malnourie say, “Please, please, Leo, don’t. Don’t hit me anymore.” She saw Leo (Lesmeister) strike Mal-nourie. She saw the sheriff there. The treatment of the two prisoners, whom she describes as “boys”, was such that she could not bear to watch it all. She saw the wrecker pull back and she heard the chains and she told another lady who was with her, “Look what they’re going to do. I think they’re going to string them.” She couldn’t stand it any more, so she turned away.

Mrs. Mason followed the cars back to Halliday. She went to the city hall and found the sheriff standing at the door. She tried to enter and he said, “No, no women and children allowed.”

The sheriff of Dunn County, Jack Pav-lenko, admits slapping Malnourie two or three times at the scene of the incident near the Big Flat Schoolhouse. He claims he was insulted by Malnourie. He also admits that there was a chain incident, but says that happened when his back was turned and that when he became aware of it, he stopped the procedure and had the prisoners taken to the car immediately. At the same time he insists that the prisoners were not mistreated. But when a police officer admits slapping a prisoner under his control and is involved in a scene approximating mob violence, he can hardly expect that much credence will be given to his testimony when he protests vigorously that there was no mistreatment involved; that he advised the prisoners of their constitutional rights to have counsel at all stages of the proceedings, and relates other facts indicating that no pressure was exerted1 on the prisoners.

In defendant’s Exhibit D, Lynn Amsden,. the highway patrolman, states that he remembers that at different times Whiteman was promised “that everything they could do for him would be done’if he would tell where the body was.” This promise was made by the sheriff. t

Yet the sheriff, in conflict with Mr. Amsden’s version, testified that he had! made no promises of any kind. He testified that he did not knock Malnourie down to. the ground, that he lost his balance and fell'. He admits that at the time of the arraignment in district court of Malnourie and Whiteman, he did not tell the court that he had slapped Malnourie and says, “He never asked me and I never told him anything.” He also admits that he did not tell the court about the chain incident for the same reason.

The record positively discloses that the trial court" at the time of the arraignment had no information as to the treatment of Malnourie and Whiteman on the evening of January 9, 1953, at the Big Flat Schoolhouse. Of course the trial court did not ask the sheriff about this incident, as it was-not aware of the fact that such an incident had taken place.

The sheriff now attempts to take credit for stopping the chain incident. But his. actions speak louder than his words.

Apparently Malnourie and Whiteman had been taken out to the Big Flat Schoolhouse for the purpose of locating the body of Cynthia Starr. When it was not found at this point, coercion and actions approaching mob violence took place in the presence of the sheriff, his deputy, the county coroner, and other law enforcement officers who had the suspects in charge. The acts that took place at the Big Flat Schoolhouse are a reversion to medieval methods condemned ages ago. Their effect on the suspects is impossible to measure.

The sheriff and all of the law enforcement officers involved were in duty bound to be alert and to see to it that only proper methods of persuasion were involved. Striking the two prisoners as the testimony positively shows, tying one of them to a post and threatening to tear him apart, are methods of persuasion which cast doubt upon any confession obtained thereafter from these men.,

Immediately after the activities almost amounting to mob violence, threats, and coercion to which the prisoners had been subjected; they, were questioned extensively again at the city hall on the same evening. It is to be noted that the first written confession obtained from the defendant, Whiteman, was on January. 10, 1953, when the hatred, violence, and threats of torture exhibited against him were fresh in his mind. In the case of People v. Dye, 119 Cal.App. 262, 6 P.2d 313, at page 316, the court holds that unless it clearly appears that the threats and inducements had ceased to operate upon the mind of the accused to bring about his statements of guilt, it may not be used against him. This case further held that the burden is upon the prosecution to prove the .voluntary character of a confession. The pertinent question . presented here is this: Can a confession obtained upon the background and the events that transpired on the late evening of January 9, 1953, at the Big Flat Schoolhouse and the subsequent questioning of this defendant and Malnourie be accepted as a confession freely and voluntarily given? We do not believe so.

■ The .defendant asserts that any statements or confessions or pleas made by him were made solely by reason of threats, coercion and fear of physical mistreatment. On January 14, 1953, he, together with Mal-nourie, signed a formal document called a confession, which, however, is in the exact language of the first degree murder charge filed' against him and Malnourie, except for a recitation that it was voluntarily given. Once having signed a confession, which we do not believe was freely and voluntarily given, the prisoner still being under the control and influence of the police officers who had allowed him to be subjected to threats and physical violence, and one of whom had made promises to him, it' becomes a question of fact whether he was not still dominated at the time by the same influences that resulted in the confession of January 10, 1953. 'No satisfactory evidence appears to the contrary. The same would be true of the oral plea given in district court. Théy could well be calculated to have been the result of the same influences that brought about the involuntary confession of Janüary 10, 1953, and until satisfactory evidence appears to the contrary, they are presumed to have been induced by the same influences as the original involuntáry confession.

It is funSamental and a well established rule that a confession of guilt by an accused is admissible against him when, and only when, it is freely and voluntarily made without having been induced by expectation of any promised benefit, or by the fear of any threatened injury, or the exertion of any improper influence. 22 CJ.S. Criminal Law, § 817 b,- page 1425; State v. Gibson, 69 N.D. 70, 83, 284 N.W. 209, 215; State v. Kerns, 50 N.D. 927, 935, 198 N.W. 698, 700; State v. Nagel, 75 N.D. 495, 515, 516, 28 N.W.2d 665, 667; State v. Braathen, 77 N.D. 309, 323, 43 N.W.2d 202, 211.

In the case of People v. Dye, supra, 6 P.2d at page 316, the court, dealing with a confession .obtained a few days after the defendant had been subjected to promises, direct threats short of' violence and which was admitted at the time of his trial for murder as evidence of his guilt, said:

“The burden is upon the prosecution to prove the voluntary character of a confession. ‘It is a fundamental rule of criminal law that a confession may not be used against a defendant, unless the prosecution can show its free and voluntary character, that it was made without previous inducement, and that neither duress nor intimidation caused defendant to furnish such evidence against himself. People v. Miller, 135 Cal. 69, 67 P. 12. It is also true that if threats and inducements are made to a prisoner, and within a few days thereafter he makes a confession, such acknowledgment of the commission of the crime may not be introduced in evidence, unless it clearly appears that the threats and inducements had ceased to operate upon his mind to bring about his statement of his own guilt. People v. Johnson, 41 Cal. [452], 455.’ People v. Loper, 159 Cal. 6, at page 14, 112 P. 720, 723, Ann.Cas. 1912B, 1193. See, also, People v. Russell, 77 Cal.App. 113, 118, 246 P. 110; People v. Quan Gim Gow, 23 Cal.App. 507, 138 P. 918. To ‘threats and inducements’ we think it appropriate to add, any illegal process whereby through external means of pressure the free will of the defendant has been overcome.”

It is the duty of sheriffs, their deputies, and other police officers who represent the people, which includes defendant, under their oath to safeguard the constitutional rights of an accused the same as those of any other citizen. Such officers should zealously and sedulously refrain from attempting to obtain a confession from a defendant by unlawful means. The end never justifies the use of unlawful means. Since our law surrounds every accused with certain legal rights, it is necessary for law enforcement officers to be mindful thereof and keep all of their activities in investigation of crime and the enforcement of law within the spirit and measure thereof. The prescribed duties of law enforcement officers impose not only the procurement of good law enforcement, but the effective safeguarding of the legal rights of an accused.

“Where an original confession is involuntary or secured by improper means, subsequent confessions of the same crime, though made to persons other than those to whom the original was made, are inadmissible as evidence, unless it appears that from lapse of time, or otherwise, the influence which induced the original confession had been removed and the party confessing was no longer dominated by such influence. People v. Spranger, 314 Ill. 602, 145 N.E. 706. If the first confession was coerced by intimidation, fear, or other improper influence, the presumption would arise, in the absence of proof to the contrary, that a second confession was the product of the same influence. State v. Ellis, 294 Mo. 269, 242 S.W. 952, 24 A.L.R. 682; 16 Corpus Juris, 722; State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631; Lang v. State, 178 Wis. 114, 189 N.W. 558, 24 A.L.R. 690; Dinah v. State, 39 Ala. 359; Flamme v. State, 171 Wis. 501, 177 N.W. 596; White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; 1 Greenleaf on Evidence, par. 221; Commonwealth v. Sheets, 197 Pa. 69, 46 A. 753; State v. Wood, 122 La. 1014, 48 So. 438, 20 L.R.A.,N.S., 392; 1 R.C.L. 573. In this case the evidence failed to show that the influences which confessedly rendered the first confession inadmissible as evidence had been removed, and the admission in evidence of plaintiff in error’s subsequent confessions was therefore, in the condition of the present record, error.” People v. Sweetin, 325 Ill. 245, 156 N.E. 354, 356. (Emphasis supplied.)

In this case the formal confession of January 14, 1953, and the oral confession by plea of guilty upon arraignment in the district court are presumptively the products of the same influence that brought about the original confession of January 10, 1953. No credible evidence appears to the contrary. The defendant was still in the custody of the same officials who participated in the Big Flat Schoolhouse affair.

In the case of Simmons v. State, 107 Tex. Cr.R. 504, 296 S.W. 513, at page 515, it is stated:

“Appellant himself makes no claim that any coercion was used at the time the confession was actually given, hut asserts that certain officers had abused, cursed, assaulted, and threatened him on the night before and had told him if he did not make the confession they would kill him. If his testimony should be taken as true it would have demanded the exclusion of the confession and showed most brutal conduct on the part of the officers.”

In the case at bar the confession was obtained the next day after threats and violence had been imposed upon the defendant. The proof as to that is positive and although there may not have been any coercion exercised at the time of the actual signing of the confession, in view of what transpired late on the evening of January 9, 1953, we believe the confession was involuntary and was procured under circumstances which would be likely to produce an untrue statement. The inadmissibility of a confession, unless voluntary, is to exclude false evidence. Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Wigmore, Evidence, 3d ed., Sec. 823 et seq.

We have arrived at the conclusion that the improper treatment of Malnourie and Whiteman on the evening of January 9, 1953, the acts of violence, threats, hostility, and the atmosphere of hatred there exhibited and continuing into the late evening when they were being questioned, continued to operate upon the mind of the defendant to an extent which brought about his confession of guilt on January 10, 1953, and constitute facts overreaching the free will and judgment of the defendant, and have deprived him of a trial on the merits. The judgment of conviction is, therefore, void. The defendant should be allowed to withdraw his plea of guilty and then resume the position occupied by him before he made his plea. State v. Magrum, 76 N.D. 527, 531, 532, 38 N.W.2d 358, 360, and the authorities there cited.

There is another and additional reason why the judgment of conviction must be set aside. That leads us to the consideration of the second main contention of the defendant.

Section 13 of the North Dakota constitution guarantees to one accused of crime the right to appear and defend in person and with counsel. Sections 27-0831, 29-0127, and 29-1303 of the North Dakota Revised Code of 1943 are legislative expressions of the guarantee of one accused of crime to appear in person and with counsel. These legislative declarations set a minimum standard which should be followed in order to afford the defendant his right to counsel as guaranteed. It is important that they be made effective so that every accused may procure a fair trial.

The incidents leading up to an appearance of an accused in district court on arraignment are background against which we must view the proceedings before the court in order to determine whether an accused has been afforded the opportunity to freely exercise the rights contemplated by our constitutional provision and the legislative declarations thereof.

In order to fully comprehend the nature of the background of the plea of murder in the first degree entered by the defendant, Oscar Whitement, Jr., it is necessary to examine not only his testimony before the court, but also that of Donald Mal-nourie. Before Donald Malnourie had entered a plea of guilty to murder in the first degree, he was questioned at considerable length by the court in the presence of defendant Whiteman. The court asked him whether he had a lawyer and he replied that he did not. He was asked whether he would like to have one, and he replied, “Yes, sir.” Then the court asked him:

“Have you the means to hire one? A. No, I haven’t.
“Q. Do you have any property of any kind? A. Yes, I have.”

The defendant, Malnourie, related that he had a quarter and eighty acres of land free from mortgages, but explained that he was an Indian and when asked as to the title ■to the land, “Well, it’s — you know—

“Q. What? A. You see I am an Indian. I don’t know if I got — it’s my land, but — ”

Then he was asked if he had attempted to hire a lawyer, and whether he wished to hire one, and he answered “Yes”. Up to that point it is clear that Malnourie wanted to consult a lawyer. Then there was further questioning, but the purport and clear implication of the statements made by Malnourie is to the effect that he waived his right to counsel only because he felt that he could not hire a lawyer, that he did not have the money to hire a lawyer, and that he did not have access or resort to his property. All this transpired in the presence and hearing of Oscar Whiteman, Jr.

Whiteman was examined by the court and stated that he was twenty-five years of age and expressed his desire to have a lawyer. He was asked:

“And your decision not to have a lawyer, is that because you are unable to hire one or just don’t care to have one? A. Well, I ain’t got the money, to hire a lawyer.
“Q. That is why you do not wish to have one? A. Yes, sir.”

From this it clearly appears that White-man did not want to have a lawyer because he felt he could not hire one.

Then the court went on and questioned him as to his property and he related that he owned one hundred sixty acres •of land; that the land was worth about $1,000; that he had not tried to employ a lawyer, and when asked again by the ■court whether he wished to have time to hire a lawyer, he replied:

“No, I don’t think I will have time to get a lawyer.
“Q. You don’t care to have time? A. I don’t care to have a lawyer.”

The record and testimony indicate that Whiteman was under the impression that he did not have time -to get a lawyer; that since he was also possessed of property the court would not appoint him a lawyer. The clear implication of the proceedings indicates that he waived his right to a lawyer because of these circumstances.

The court examined Malnourie with reference to the worth of his land and asked:

“And you do desire to have time to hire a lawyer, do you? The court will give you time if you wish to have it. A. You see I have no money, though, to get a lawyer.
“Q. You have property. A. Well, you see, I can’t sell that. It’s under trust from the government.
“Q. You said you were a citizen.
A. Well, yes, I am. I am an Indian citizen.
“Q. Yes. For that purpose you could mortgage it, couldn’t you? A. Well, yes, I suppose I could.”

Whiteman was also present when this took place.

The court then ordered the State’s Attorney to read the joint information against Donald Malnourie and Oscar Whiteman, Jr. It reads, omitting its formal parts, as follows:

“ * * * informs this court, that heretofore, to wit: On or about the the first day of January in the year of our Lord one thousand nine hundred and fifty-three in the County of Dunn in the State of North Dakota, one Donald Malnourie and Oscar Whiteman, Jr., late of the County of Dunn and state aforesaid, did commit the crime of murder in the first degree, committed in the manner following, to wit: That at the same time and place the said defendants did then and there willfully and unlawfully and feloniously, of their own malice aforethought, and with the premeditated design to commit rape upon the body and person of Cynthia Starr, a minor girl of the age of sixteen years, between the hours of 6:30 o’clock p. m. and 8:30 o’clock p. m. in the nighttime, on the first day of January, 1953, in the vicinity of Halliday, in Dunn County, North Dakota, being what is known as the Big Flat District, south of Halliday, North Dakota, hit and strike the said Cynthia Starr over the head and body with a wine bottle, generally known as a four-fifths quart bottle, containing wine, while in an automobile described as a 1948 Plymouth four-door sedan, then and there knocking the said Cynthia Starr unconscious and from which said car the said defendants did then and there, or a short time thereafter, drag the said Cynthia Starr from the said car, place her in a ditch, on the north side of the road, just south of the SE14 of Section 15, Township 143, Range 92 in Dunn County, North Dakota, where she died as a result of such blows on the head as aforesaid, and where she was found dead January 10, 1953, and the said defendants, Donald Malnourie and Oscar Whiteman, Jr., in the manner and by the means aforesaid, did commit the crime of murder in the first degree.”

The court then asked the defendants if they understood the information and whether they understood that it charged them with the crime of murder in the first degree, to which each of them replied affirmatively. Then each of them was asked whether they understood the nature of the crime and they replied, “Yes, sir.” The court then announced “You know that if you áre found guilty, that you may be punished for such offense?” No explanation of the consequences of a plea of guilty to murder in the first degree was made to either Mal-nourie or Whiteman. They were not told there were degrees of the crime of murder; that the punishment for first degree murder was life in the penitentiary. For all the record discloses, they may have been totally unaware of the complete consequences of a plea of guilty to murder in the first degree.

Then the court advised further that a plea of not guilty would entitle them to a trial before a jury of twelve citizens of Dunn 'County before the court, at which time they could appear in person and by counsel if they so desired; that they could compel the attendance of witnesses and that such trial would be at the next term of the Dunn County district court. They were informed that if they entered a plea of guilty the court would impose sentence forthwith. Then this followed:

“The Court: Now, Mr. Malnourie, you have indicated that you desire to have a lawyer?
“Mr. Malnourie: In this court, yes.
“The Court: And it appears that you have property ample to employ a lawyer yourself and the court will set a time for you to appear again later, and give you an opportunity to consult a lawyer.
“Mr. Malnourie: Your Honor, the court wouldn’t give me a lawyer, would they?
“The Court: Well, if you were without means the court would provide a lawyer for you, but if you have a quarter and a half of land and it’s free from indebtedness, the court wouldn’t feel justified in spending public money to hire a lawyer for you.
“Mr. Malnourie: Well, then I’m— I don’t want a lawyer, and get it over with.
“The Court: You do not want a lawyer?
“Mr. Malnourie: No.
“The Court: The court is willing to give you the time to see if you might not employ one and if you wouldn’t be able to hire one yourself — I am not trying to rush you through this thing. It’s an important matter and it’s a serious matter.
“Mr. Malnourie: I know, sir; might as well get it over with now.
“The Court: Well, I don’t think you should just try to rush through this thing just for the purpose of having it over with. If you wish to consult a lawyer, why, the court is very happy to give you the time to do that.
“Mr. Malnourie: I’ll plead guilty, your Honor.”

It seems entirely clear that Malnourie waived the right to counsel because he felt that he did not have the time to employ counsel and because the court had told him that it could not under the circumstances furnish him counsel. Whiteman’s financial circumstances were much like those of Mal-nourie, although the record does not show whether his land was held in trust. He had indicated too that he wanted a lawyer. He was also an Indian. He would naturally conclude that since the court could not furnish a lawyer to Malnourie, it would not furnish one to him. When he was asked by the court:

“Mr. Oscar Whiteman, Jr., to the criminal information charging you with the crime of murder in the first degree, what is your plea, — guilty or not guilty?
“Mr. Whiteman: Guilty.
, “The Court: Do you understand that in making that plea of guilty, you admit that you committed this crime?
“Mr. Whiteman: Yes, sir.
“The Court: And that you may be punished for it?
“Mr. Whiteman: Yes, sir.”

Again it is noted that no mention is made of the consequences of a plea of guilty to murder in the first degree. Malnourie had just pleaded guilty to get it over with.

When the record is completely and fully scrutinized, it indicates that Whiteman waived counsel because he felt that under all circumstances he could not procure the appointment of counsel.

The defendant is an Indian citizen, 25 years of age, with only a grade school education. He was confronted by the most serious crime under our law. He had no one with whom to counsel or from whom to seek advice to protect his legal rights. He had been detained in an atmosphere of hostility of which the trial court was not aware. He had been subjected to intimidations, threats and even violence, and the evidence bears out that he felt that there was nothing he could do except to plead guilty to the information charging him with murder in the first degree. He felt that he had but one alternative. It was a waiver compelled by a lack of choice, arising out of the necessities of the circumstances.

A waiver of counsel based on these conditions cannot be said to be freely and understandingly made. There is also the possibility that there was a misunderstanding between the court and the defendant. It cannot be said that the accused, on the basis of what transpired, understandingly waived counsel. State v. Magrum, 76 N.D. 527, 533, 38 N.W.2d 358, 360; Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127.

He had signed the confession on January 10, 1953, given under the circumstances already set forth. He signed a formal confession on January 14, 1953. The evidence warrants the inference that he believed that since he was possessed of property, the court would not assign him counsel.

There must not only be the capacity to make an understanding choice, but there must be an absence of subverting factors so that the choice is clearly free and responsible. Here the choice does not appear to be free and responsible. The accused at no time had refused counsel. Rather the testimony indicates the desire for one, but the belief that the desire could not be fulfilled. And here, as was said in the Uveges v. Pennsylvania case, 335 U.S. 437, 69 S.Ct. 184, 186:

“The gravity of the crime and other factors — such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto — render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group (referring to members of the United States Supreme Court) holds that the accused must have legal assistance under the Amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel.”

A defendant may competently and intelligently waive his right to the assistance of counsel. Whether there has been such a waiver is to be determined by the facts of each case. The burden of proof is upon the defendant to establish the facts upon which he relies. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; State v. Magrum, 76 N.D. 527, 38 N.W.2d 358. Here the facts do not warrant the conclusion that such waiver was made. The defendant and appellant has sustained the burden of proof.

After the entry of the plea of guilty both Malnourie and Whiteman were questioned at considerable length by the court with reference to the facts that gave rise to the information that had been filed against them. It is unnecessary, and perhaps tvould be inappropriate to discuss the facts in that connection in view of our disposition of this case. Both the court and the State’s Attorney apparently were in doubt as to the nature of the crime of which this defendant might be guilty. The court had asked him:

“But do you think that Mr. White-man actually did some act which proximately caused the death of Cynthia Starr?
“Mr. Malloy: Your Honor, I don’t know. So far I haven’t been able to get any story that he has, except that he had rape on his mind when he met her. * * * It may be that he should be charged with an accessory after the fact. I didn’t have any way of knowing definitely just — ”

When this statement was made by the State’s Attorney a plea of guilty had been entered by the defendant to murder in the first degree and accepted by the court. When the State’s Attorney, an experienced counselor and attorney at law, expresses a doubt as to the crime committed by this defendant, can it be said that the defendant fully understood the nature of his plea?

After the completion of the examination of both Malnourie and Whiteman, the defendant Whiteman was sentenced, not under his plea of murder in the first degree, but to the crime of murder in the second degree. It is clear from this fact that the court under all the circumstances did not feel that Mr. Whiteman had made his plea with complete understanding.

Here we have a situation where the State’s Attorney expresses a doubt as to the crime that should have been charged against this defendant. The court has already accepted a plea of murder in the first degree based upon an information that such crime was committed by this defendant while in the commission of a felony, to wit: rape; that after ascertaining all the facts as completely as possible, the court itself was in doubt, and to give the defendant the benefit of that doubt, sentenced him to a lesser degree of crime than that to which he has pleaded. These circumstances are conclusive of the fact that the defendant did not freely and understandingly enter his plea, nor freely and understandingly waive counsel. This fact alone was ample reason for appointment of counsel to advise the defendant in -view of the gravity of the offense.

When the entire proceedings are viewed in the light of the events that preceded the first written confession obtained from this defendant and proceedings upon the arraignment which we have set out at length in this' opinion, we are satisfied that the defendant’s plea of guilty to murder in the first degree was based upon a confession that was involuntarily given and that he was not afforded the right of counsel for which our constitution and statutes provide, nor did he intelligently and understandingly waive his rights. State v. Magrum, 76 N.D. 527, 38 N.W.2d 358; Williams .v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; People v, Williams, 399 Ill. 452, 78 N.E.2d 512, 3 A.L.R.2d 999. For other cases see page 1077 of note. See also Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

■For a most enlightening and interesting discussion of the historical development of the right of counsel by an accused, see Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. The emphasis of the law in later years has been to make the right of counsel effective and to eliminate denial thereof to any accused unless the facts and circumstances clearly disclose that counsel was competently and intelligently waived.

Since the conviction and judgment are set aside, which will of necessity involve another trial, it is unnecessary to determine what, if any, bearing the alleged newly discovered evidence may have in connection therewith.

It follows that the judgment and sentence are void. The denial of the motion is reversed. It is, therefore, ordered that the judgment and sentence against this defendant be vacated, that he be discharged from imprisonment under the judgment and sentence, and that he be returned to the custody of the sheriff of Dunn County, North Dakota, pending further proceedings in accordance with our law.

MORRIS, C. J., and GRIMSON, BURKE and SATHRE, JJ., concur.


author: BURKE, Chief Justice.

text:
    C. A. SPENNINGSBY, sole trader doing business under the firm name and style of Valley Sales Company, Plaintiff and Respondent, v. Peter T. PETERSON, Earl K. Peterson and Clarence Peterson, co-partners doing business under the firm name and style of Bison Freight Lines, Defendants and Appellants.
    No. 7334.
    Supreme Court of North Dakota.
    Jan. 7, 1955.

      L. T. Sproul and Romen H. Fitzner, Valley City, for appellants.
    Wm. L. Paulson, Valley City, and Philip L. Scherer, Winthrop, Minn., for respondent.
   BURKE, Chief Justice.

In this action, plaintiff sought to recover property damages incurred in a collision between a tractor and semi-trailer driven by one of his employees and another tractor and semi-trailer which was in the control of an employee of the defendants. Upon a jury trial a verdict for the plaintiff was returned and judgment in accordance with the verdict was entered. Defendants have appealed from the judgment. There are several specifications of error but only one of these specifications is argued in the brief. That one is that the evidence is insufficient to sustain the verdict. The specifications not argued are deemed to be waived. Kennedy v. State Bank of Bowbells, 22 N.D. 69, 132 N.W. 657; Beauchamp v. Retail Merchants’ Ass’n Mut. Fire Ins. Co., 38 N.D. 483, 165 N.W. 545.

Upon the question of the sufficiency of the evidence the contentions of the defendants are: 1, that there is no evidence of any actionable negligence upon the part of the defendants’ employees, and 2, that the evidence establishes contributory negligence on the part of plaintiff’s employee as a matter of law.

The collision occurred about two miles east of Valley City on a bitter March day. The temperature was zero and blizzard conditions prevailed. Maximum visibility was 75 to 100 feet but intermittent snow flurries of increased density at times reduced visibility to zero. Defendants’ employee, driving a tractor and a fully loaded semi-trailer, had arrived at Oriska, eleven miles east of Valley City early in the ■morning. At Oriska, he waited awhile to see if the storm would abate. When he was satisfied that weather conditions had cleared sufficiently for him to proceed in safety, he set out for Valley City. He stated that it was impossible for him to guide his vehicle safely by viewing the road through his windshield. He opened the window of the cab and guided his tractor by watching the edge of the paving on the left-hand side of the road. To accomplish this it was necessary for him to drive practically in the center of the road. As he drove along his engine commenced to falter and at a time he was proceeding up a slight grade stopped altogether. Defendants’ employee then set his brakes and put his transmission in first gear, thus securely anchoring his vehicle where it had stopped, approximately in the center of the road. Another employee of defendants who was driving a following vehicle of the same character, saw the parked vehicle in time to stop within five or six feet of it. This vehicle was being driven at a speed of five or six miles an hour. Defendants’ two employees then attempted to start the engine of the disabled tractor. Failing in this, they left the vehicle unattended and proceeded towards Valley City. In the parked vehicle were flares and warning flags. These signals were not set out. While the parked vehicle could not proceed forward, it would have been possible for the driver to let it coast backward down hill and to guide it to a position at the side of the road. This, he did not do. Later another tractor-trailer combination belonging to Winston-Newell .Company approached the parked vehicle from the east. Its driver stated, “I was driving up grade at a speed of five or six miles an hour looking out the side window watching the black top and all at once the reflectors of the trailer shown back from the truck and I stopped, and here was;the trailer right-in front of me. I stopped four or five feet from the trailer.”

Plaintiff’s employee came along the same route and reached the vicinity of the parked vehicle at about eight o’clock in the morning. He also was driving a tractor-semi-trailer combination. He testified that he was driving at a rate of fifteen miles per hour, that the visibility was about fifty to seventy feet and that he could stop within the range of his visibility. As he was driving along he encountered a snow flurry which reduced visibility to nine or ten feet. He immediately applied his brakes and started reducing his speed. Suddenly he saw “a shape loom up” in front of him at a distance of not more than ten feet. By that time he had reduced his speed to eight or nine miles per hour. He tried to avoid a collision by turning sharply to the left but failed in the attempt.

Does this evidence make the question of defendants’ employees’ negligence and the question of plaintiff’s employee’s contributory negligence questions for the jury? Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom. Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816; Pachl v. Officer, N.D., 54 N.W.2d 883.

The evidence concerning the conduct of defendants’ employees establishes that they abandoned a stalled vehicle in the center of a well-traveled highway. While the vehicle could not be moved under its own power, it is undisputed that it had stalled upon a grade and that it could have been backed downhill to the side of the road where it would have been relatively harmless as an obstruction to traffic. Section 39-1022 NDRC 1943, provides that no person shall park or leave standing any vehicle upon the main traveled portion of any highway outside of a business or residential district unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position. Here it was possible to move the vehicle to a place of relative safety and the failure of defendants’ employees to so move the vehicle was evidence of negligence. A violation of a statutory rule, relating to safety upon the highways is evidence of negligence, Knutsen v. Arendt, N.D., 56 N.W.2d 340. See also Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92, in which the failure to back a stalled truck downhill to a place of safety was held negligence. We are satisfied therefore that the evidence is at least sufficient to sustain the jury’s finding of negligence on the part of defendants’ employees.

In considering whether plaintiff’s employee was guilty of contributory negligence as a matter of law, we must view the evidence in the light most favorable to him. Ekren v. Minneapolis St. P. & S. S. M. R. Co., N.D., 61 N.W.2d 193; Smith v. Knutson, 78 N.D. 43, 47 N.W.2d 537.

According to the testimony of plaintiff’s employee, he was driving through a snow storm at a speed of fifteen miles an hour, he could see fifty to seventy-five feet ahead and could have stopped within that distance if necessary. Suddenly the storm grew more intense and visibility was reduced to a distance of nine to ten feet. He immediately applied his brakes to reduce his speed, he had reduced his speed to eight or nine miles an hour when defendants’ truck “loomed up” in front of him at a distance of not more than ten feet. He also testified that up until the time his vision was practically obliterated by the sudden increase in density of the driven snow, the storm had been relatively constant in severity and that this was the only occasion upon which he had encountered a dimming of visibility to less than fifty feet. Thus plaintiff’s employee was confronted by a sudden and unanticipated emergency. He reacted to the emergency by gradually slowing down the speed of the truck, but still was unable to avoid the collision.

We think the principle of law applied by this court in Lostegaard v. Bauer, 78 N.D. 711, 51 N.W.2d 761, is applicable Rere. In that case we held that á jury might find that the driver of a car, who was temporarily blinded by glaring lights of an approaching car, immediately prior to colliding with a parked car, was free of contributory negligence. In the instant case the driver’s vision was obscured by an unexpected snow squall. The difference between the two cases is immaterial in so far as legal results are concerned. In each the driver’s ability to see was interfered with by an agency which was unforeseen and beyond his control.

We are satisfied therefore that the question of contributory negligence on the part of the plaintiff was one for the jury. .

The judgment of the district court is therefore affirmed,

MORRIS, SATHRE and GRIMSON, JJ.( concur,

JOHNSON, J., did not participate.