State v. Sandve, 40299

• Decision Date: 09 February 1968
• Docket Number: No. 40299,40299
• Parties: STATE of Minnesota, Respondent, v. James Kermit SANDVE, Appellant.
• Court: Minnesota Supreme Court

Page 230

156 N.W.2d 230

279 Minn. 229

STATE of Minnesota, Respondent, v. James Kermit SANDVE, Appellant.

No. 40299.

Supreme Court of Minnesota.

Feb. 9, 1968.

Syllabus by the Court

[279 MINN 229] Where a defendant in a prosecution for robbery is caught in the act and his only defense is that he was so intoxicated that he did not know he was not entitled to the property he was taking, error in the trial court's instruction that no inference may be drawn from defendant's failure to testify will not be held sufficiently prejudicial to warrant a new trial under the facts of this case.

C. Paul Jones, Public Defender and Bruce D. Willis, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Asst. County Atty., Minneapolis, for respondent.

OPINION

KNUTSON, Chief Justice.

Defendant was found guilty by a jury of the crime of simple robbery and sentenced to the State Prison for a term not to exceed 10 years.

The facts are not seriously in dispute. About 10 p.m. on May 6, 1965, Eloy McKeever, who was employed as a desk clerk at the Wilmington Hotel in Minneapolis, was at his position. A man, later identified as defendant, James Sandve, walked into the hotel with his right hand in his jacket pocket and said to McKeever, 'This is a stickup.' His hand was held in his pocket in such a manner as to create the impression that he was armed; his face was covered by a handkerchief which extended up to a point slightly below his eyes. It later developed that he did not in fact have any weapon on him.

The hotel receipts were in a cash drawer behind the counter. In response to defendant's demand, McKeever unlocked the cash drawer. Defendant had stayed at the hotel a few times and apparently knew where the cash was kept. Instead of asking McKeever to get the money for him, the intruder walked behind the counter and then asked where the cash box was. He took all the paper money from the cash drawer but did not take the coins. He then turned around and headed for the door.

A hotel guest, Ted Bordeaux, was standing in front of the counter and witnessed the entire proceeding. As defendant came from behind the counter he passed within 3 or 4 feet of Bordeaux. As he neared the door he turned his back to Bordeaux, who then grabbed him and knocked him to the floor. Bordeaux struck him several times and held him until police arrived and took him into custody. He was treated for superficial cuts suffered in the scuffle. Bordeaux said defendant struggled to begin with, but he apparently struck no blows and was quite easily subdued by Bordeaux, who was a large, powerful individual.

Defendant was charged with simple robbery in violation of Minn.St. 609.24. He entered a plea of not guilty. At the arraignment on May 17, the public defender was appointed to represent him. Defendant was dissatisfied with the attorneys from the public defender's office and requested time to procure his own counsel. The trial court granted him time but he was unable to retain his own attorney. He continued to express discontent with the attorneys from the public defender's office. The judge advised him that an attorney from outside the public defender's office could be appointed for him, but cautioned him that such attorney would likely be less familiar with criminal trials than would an experienced attorney from the public defender's office. Defendant thereupon requested that Howard Marker of the public defender's office be appointed to represent him, which was done.

The trial was before a jury, which found defendant guilty. It is not denied at this time, nor could it well be, that defendant was the individual who committed the crime. His defense, and the only question he raises here, is that he was so intoxicated at the time that he did not know what he was doing. He also complains of errors in the court's instructions, which will be discussed hereinafter.

The crime of simple robbery is defined in § 609.24 as follows:

'Whoever, Knowing he is not entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome his resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery * * *.' (Italics supplied.)

Thus, it is clear that one of the elements of the crime is knowledge by the accused that he is not entitled to the property which he takes.

Section 609.075 relates to intoxication as a defense, and reads:

'An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.'

Thus, under this statutory provision intoxication may be taken into consideration in determining whether defendant had that state of mind which would enable him to know that he was not entitled to the property that he was taking. The court instructed the jury fully on the issue of intoxication and were it not for the fact that certain instructions, which are claimed to be error, had been given, there would be no doubt that the jury had ample evidence to find that defendant was not so intoxicated that he did not know the property he was taking did not belong to him. He had his face covered with a handkerchief; he had his hand in his pocket, simulating the possession of a weapon; he knew where the money was and went to the cash drawer and took all the paper money out, leaving the coins; when he entered he informed McKeever, 'This is a stickup'; and he sought to leave the place while he still had McKeever believing that he was armed. While the final outcome of the proceeding demonstrates that the holdup was clumsily performed, at least when he turned his back to Bordeaux, other evidence indicates quite clearly that he knew exactly what he was doing. The only evidence of intoxication is a statement in the hospital record, apparently made by the doctor who treated him, that he appeared inebriated, and a statement by one of the police officers that he smelled liquor on his breath. A police officer testified that defendant had told him that he had consumed about 2 bottles of wine, but even though he was partially under the influence of liquor, the jury could find that he knew full well what he was doing when he committed the robbery.

The court's instruction which is attacked would not be of great significance unless it had some relevance to the finding by the jury that defendant knew what he was doing. Defendant did not testify in his own behalf. The court and prosecuting attorney were informed by defendant and his counsel in chambers that he did not intend to take the stand, and defendant's counsel requested the court to instruct the jury that defendant's failure to take the stand could not be held against him. The instruction given by the court went far beyond legitimate bounds,...