State v. Alton

• Decision Date: 04 September 1908
• Citation: 105 Minn. 410,117 N.W. 617
• Parties: STATE v. ALTON.
• Court: Minnesota Supreme Court

105 Minn. 410

117 N.W. 617

STATE

v.ALTON.

Supreme Court of Minnesota.

Sept. 4, 1908.

Appeal from District Court, Hennepin County; John Day Smith, Judge.

Thomas Alton was convicted of rape, and he appeals. Reversed.

Brown and Elliott, JJ., dissenting.

Syllabus by the Court

The prosecutrix was criminally assaulted while wheeling her child in a baby carriage in a somewhat secluded spot. She was choked into insensibility, and, upon regaining consciousness, found the child and its carriage missing. In the course of half an hour she approached a house, about half a mile distant, in a greatly exhausted and excited condition, crying and screaming, and to the person who came to her assistance she made statements to the effect that some one had knocked her down and stolen her baby; that some one had killed her baby. ‘A man tried to kill me and my baby,’ and she repeatedly called upon the people present to find it. She was bleeding from wounds in the face. The child was found and returned to her, after which she was taken into the house.

Held, all such declarations as were made up to the time her child was found and restored to her were properly admissible in evidence as a part of the res gestae; but it was error to receive in evidence the statements and declarations which were subsequently made by her after she entered the house, which were not made in the presence of the defendant.

The single fact that a stain upon defendant's shirt sleeve was blood, it not being shown to be human blood, and it appearing that it may have been deposited there for six months or a year, was too remote and of no probative force in establishing the identity of defendant as the guilty party.

The determination by microscopical test that a stain on defendant's shirt contained spermatozoids, in the absence of any other evidence tending to prove their origin and time of deposit, was incompetent for the purpose of identifying defendant.

The fact that a small pearl button taken from the ground at the place of attack contained a shred of black cotton cloth of the same texture as defendant's shirt, together with the fact that a button was missing from one sleeve of defendant's shirt, was, under all the circumstances of this case, incompetent evidence, not tending to establish the identity of defendant. Thomas Kneeland and Thos. D. Schall, for appellant.

Al. J. Smith and E. T. Young, for the State.

LEWIS, J.

Defendant was convicted of the crime of rape alleged to have been committed at Medicine Lake, Hennepin county, August 2, 1907. Beyond and doubt whatever, the prosecutrix was most cruelly assaulted, and the evidence is sufficient to sustain the charge of rape; but it is by no means conclusive that defendant is the guilty party, and our review of the case will be confined to the assignments of error which are directed to the evidence and rulings of the court with respect to the defendant's identity.

On the northwesterly shore of Medicine Lake, during the summer of 1907, stood a hotel and saloon kept by John Krumholz. A public highway ran past this place in a southerly direction along the westerly side of the lake. On the westerly side of the highway, and about 360 feet south from the hotel, stood a house then occupied by Mathias Mengelkoch and his wife, Elizabeth Mengelkoch, the prosecutrix. At a point about 180 feet south from the hotel another road branched off, running westerly for a distance of about 375 feet, and then in a southwesterly direction, passing in the rear of the Mengelkoch house, about 180 feet distant therefrom. This road was not generally used by the public, but led to certain hay meadows and small fields located within a mile from the Krumholz hotel. A path ran from this road easterly to the Mengelkoch house. At a point about 200 feet south from this path, the road divided, one branch running northwesterly, perhaps 300 feet to the Winn house, and the other branch continuing in a southerly direction for about 150 feet, where it again divided, one branch leading southerly to an open field, cottage, and hay meadow, the other branch leading on to the south. At this junction was located a pile of cordwood. The ‘berry patch’ was at the side of the south branch of the road, and perhaps 200 feet south of the junction and south of the cordwood. The country around was generally wooded, with the exception of certain small clearings and hay meadows. On the afternoon of August 2, 1907, according to her testimony, Mrs. Mengelkoch left her house, and, wheeling her baby carriage, passed by way of the path to the private road in the rear of her house, and then down the road to the berry patch. After picking berries about an hour, she started back, and just as she passed the junction she noticed a man step from the brush into the other road, not over a rod or two distant from her. She testified: That she recognized him as the same man she had seen upon two former occasions and described his dress. He had on a black shirt and ‘pants,’ and light hat. That she passed on, wheeling the carriage, and turned out of the road to allow him to pass. That he came on, walking fast, and, when he was within two feet of her, she turned and caught a glimpse of his features. That he grabbed her around the neck, and choked her into insensibility. Upon regaining consciousness, she found herself bleeding from wounds on the face, and, being at first unable to walk, she crawled along the ground towards her house, looking for the baby carriage, which was missing. She went back to her house only to find no one around, and passed on towards the Krumholz hotel. A short distance from the hotel she met a stranger. ‘He asked me what had happened and I told him all about it. Then later on, when Mr. Krumholz came, he asked me what had happened, and I told him about it. He asked me whether it was the barber, and I told him, ‘No.’ He asked me whether it was Mr. Winn, and I told him, ‘No.’ And then he says, ‘Do you know the man?’ and I says, ‘No.’ He says, ‘Would you know him if you seen him?’ and I says, ‘Yes; it is the man that has been working for you, and I saw him several times before this week. He went through this road several times.’ He asked me how he was dressed and I told him he wore a black shirt, black trousers, and a light hat. He asked me whether he was an old man, and I told him ‘No.’ He was a young man, smooth faced. Q. Did you know this man's name? A. No; I didn't. Q. Did you know then that he worked for Krumholz? A. No; I took it for granted that he did, because he was walking along with the pitchfork there.' The witness further testified that after the baby was found, and she was resting in the hotel, the defendant was brought in before her, and that she recognized him as the man who assaulted her. On cross-examination the witness stated that in trying to defend herself she knew she touched his face and neck with her hands and finger nails. ‘I thought so as far as I could tell.’ She also claimed to have seen defendant walking in the public road near the bridge on the Tuesday previous to the assault (Friday). On that occasion he was carrying a pitchfork, came from the direction of the Krumholz house, and passed down the private road. He then had on a black shirt. He was a rod or two distant from her. She also testified that on the Wednesday or Thursday previous to the assault she saw the man from her garden as he passed down the private road about six rods away. At the trial the witness insisted that the defendant was the man who assaulted her.

In addition to the testimony of the prosecutrix, the state produced the testimony of several persons who testified to certain statements made by the prosecutrix when she was first discovered approaching the hotel which were all admitted as part of the res gestae over defendant's objection. Guy Hastings, who was stopping at the hotel, testified: That from the hotel kitchen he observed the prosecutrix coming up the road near the bridge and went out to meet her. That she was staggering, could hardly walk. The left side of her face was battered up. ‘One of her eyes was nearly closed-the left one-and blood was running out of the other eye. The first words she said that I could understand after she got up near the house was: ‘My baby! My baby! She kept saying that, and wanted somebody to help find her baby. She said: ‘Somebody has killed my baby. My baby! My baby! Won't you help me to get my baby?’ That she was crying, and that he asked her what the trouble was, and that she said some one had come up behind her and knocked her down and stolen her baby. I asked her if she had any idea who done it, and she said: ‘Yes; the man that worked for John Krumholz.’' Several witnesses testified to her condition and appearance. All agreed that she was cut and bruised about the face, which was swollen and bleeding; that she was greatly exhausted and excited, and constantly called for her baby, claiming some one had killed it. The baby was found sleeping in its carriage behind the woodpile near the scene of the assault.

While outside the hotel and after the baby had been found, she stated to Mr. Krumholz, so he testified, that the man wore a black shirt and trousers, and that she had seen him coming two or three times that week over that way; ‘that she thought I knew the man; that he worked for me.’ Mrs. Hastings testified that she was present with the others when the prosecutrix first came towards the hotel; that she cried out in her hearing, ‘The man, the man!’ and, when asked if it was her husband, she replied, ‘No, no!’ that it was a strange man with a black shirt, dark pants, and a light hat, and that she had been him two or three times by her place.

After the baby had been found, the woman was taken into the hotel; and, while waiting there, Mr. Krumholz went down to the meadow and found defendant at work putting up hay at a point about 400 feet southwesterly from the road junction near the woodpile, and,...