State v. Ames

• Decision Date: 09 July 1903
• Docket Number: Nos. 13,480-(24).,s. 13,480-(24).
• Parties: STATE v. FREDERICK W. AMES.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 183

90 Minn. 183

STATE v. FREDERICK W. AMES.¹

Nos. 13,480-(24).

Supreme Court of Minnesota.

July 9, 1903.

Appeal by defendant from an order of the district court for Hennepin county, Brooks, J., denying a motion for a new trial, after a trial and conviction of the crime of receiving a bribe. Affirmed.

Welch, Hayne & Hubachek, for appellant.

W. B. Douglas, Attorney General, F. H. Boardman, County Attorney, C. S. Jelley, Assistant County Attorney, and John W. Arctander, Special Assistant to the Attorney General, for the State.

BROWN, J.

Defendant was tried and convicted in the district court of Hennepin county of the crime of receiving a bribe while acting in the capacity of superintendent of the police of the city of Minneapolis, and appealed from an order denying his motion for a new trial.

A large number of assignments of error are reduced by counsel to ten distinct propositions, and these will be taken up and disposed of in the order presented in appellant's brief. A statement of the facts will be made in connection with the appropriate question.

1. At the time defendant was arraigned and required to plead to the indictment, he interposed a motion to quash, annul, and set the same aside, and for leave to challenge and interpose objections to certain of the grand jurors, which motion was in all things denied, and of this ruling he complains. The motion presented questions relative to the qualification of individual members of the grand jury, and was based upon the claim (1) that every member of the grand jury was a prosecutor upon a charge against the defendant; (2) that a state of mind existed on the part of each juror with reference to the case and with reference to defendant which prevented him from acting impartially and without prejudice to the substantial rights of defendant. It was urged in support of the motion that the grand jury had, a short time prior to returning this particular indictment, found and returned into court another indictment charging defendant with having received a bribe, upon which indictment he was thereafter tried and duly acquitted. He also attempted to show in support of the motion that individual members of the grand jury had expended, of their personal and private funds, a large amount of money in the investigation of this and other charges of municipal corruption in the city of Minneapolis, and that one or more of the grand jurors personally expressed sentiments of hostility toward defendant. In support of these charges of prejudice and bias on the part of members of the grand jury, defendant asked leave of the court to interrogate said jurors in open court on the subject, but the request was denied.

We find no error in the ruling of the court in respect to this motion. The objections thereby made to the grand jury were, in effect, challenges to the individual jurors for prejudice and bias, which could be interposed only after they were sworn and before they retired. It is so provided by G. S. 1894, § 7188, and it is not important that defendant had not previously been bound over to await the action of the grand jury. It was held in State v. Davis, 22 Minn. 423, that the right to challenge the panel of a grand jury, or any member thereof, is secured by statute only to persons held to await their action. And in Maher v. State, 3 Minn. 329 (444), the court held that the fact that defendant was confined in jail when the jury was sworn did not give him the right subsequently to challenge them.

Section 7189, under which counsel claimed the right to interpose the challenge in the case at bar, does not apply. That section refers exclusively to challenges to the array or panel, and not to individual jurors; and though a challenge to the array, in the form of a plea in abatement or motion to quash the indictment, may be interposed thereunder after the return of an indictment, within the decision in State v. Russell, 69 Minn. 502, 72 N. W. 832, only questions relative to the regularity of the proceedings in the selection and formation of the jury can be urged under it. This is the common-law rule, and there was no intention on the part of the legislature to change it. At common law, challenges going only to the prejudice or bias of individual jurors were required to be made before they were sworn. State v. Rickey, 10 N. J. L. 83; People v. Jewett, 3 Wend. 314; State v. Hamlin, 47 Conn. 95; 1 Bishop, Cr. Proc. 882, 883. And such has always been the practice in this state, so far as we are advised. State v. Russell, supra, though perhaps in conflict with State v. Davis, supra — the latter holding that both challenges to the array and to individual members must be made before the jury is sworn — does not sustain defendant to the extent claimed. The objections there entertained, after the jury had been sworn, involved the proceedings leading up to its formation, and not the qualifications, as to prejudice or bias, of the jurors. The decision in the case of State v. Osborne, 61 Iowa, 330, 16 N. W. 201, appears to have been based upon the provisions of the statutes of that state, and is not in point.

2. Defendant was superintendent of the police department of the city of Minneapolis, and the indictment charges him with having received a bribe from one Addie Mills on February 4, 1902, of the sum of $15, upon the understanding and agreement that he would, as such superintendent of police, protect said Mills from arrest or punishment for keeping a house of ill fame in said city, in which occupation she was then engaged; it being then and there the duty of defendant, as such official, to cause the arrest of said Mills, or any other person engaged in such an unlawful occupation. To establish the truth of this charge, the state introduced evidence tending to show that witness Mills, the person named in the indictment, on February 5, 1902, paid to one Joseph Cohen the sum of $15, pursuant to an arrangement previously made with defendant, and for the purpose of securing protection in her occupation; that Cohen represented defendant, and was authorized by him to receive the money. Witness Mills testified to the payment to Cohen, and related certain conversations with him concerning it, and defendant complains of the ruling permitting her to do so. It is insisted on the part of defendant that no foundation was laid for the introduction of her testimony; that there was no sufficient showing of connection or confederacy between Cohen and defendant, or that defendant ever authorized Cohen, directly or indirectly, to collect or receive the money from her. This presents one of the principal features of the case, and it is necessary to its proper understanding to make a brief outline or statement of the facts relied upon by the state to establish the contention that Cohen was the representative of defendant, and authorized to receive for him the money from witness Mills.

As already stated, defendant was superintendent of the police department of the city of Minneapolis, charged with the powers and duties usually possessed by such an officer — to maintain the law, preserve order, and direct his subordinates in that behalf. In January, 1902, together with two police officers of the city (Brackett and Wirtensohn, members of his department and subject to his direction), defendant made a tour of the city for the purpose of locating houses of the character of that operated by witness Mills — ostensibly candy stores, but in fact conducted for immoral purposes in violation of the laws of the state; the business of candy vending being a mere cover to hide the real character of the place. To each one of the proprietors of such places defendant stated that he had been informed that they had been paying money to one Gardner, then a police officer, but not under the direction of defendant, for certain purposes; and he directed them to stop it, and make no further payments to any person until he should advise them. He directed them to call at his office in the course of a week or two, at which time he would be prepared to inform them what they would be expected to do in respect to future payments. This statement was made to witness Mills, and, pursuant to his directions, she called at the office of defendant within a short time thereafter, when she was informed by him that he had not yet decided what to do, but that as soon as he came to a decision he would communicate the fact to her; and she testified at that time he agreed to "protect her all he could." He ordered all the women visited at the time stated to call at his office for directions in respect to future payments of money, with which order they complied, when they were told, as witness Mills was, that he had not yet determined what they should do, but would communicate with them later.

Testimony was then introduced tending to show that, soon after the women so called upon him, defendant ordered Officer Wirtensohn, one of the officers who had previously accompanied him, to go with said Cohen to the various houses so previously visited, which order Wirtensohn complied with. He called at each place with Cohen, and the latter, who had a list of the places, informed the women that he represented defendant, and that they would be required to make payments of money for protection to him at his jewelry store, and directed them how the payments were to be made — by inclosing the money in an envelope marked only with a number, which Cohen at the time gave each. The evidence shows that thereafter the women, including witness Mills, made monthly payments to Cohen of various amounts, under the arrangement made with defendant that they should be protected in their unlawful occupation.

There is no direct evidence connecting defendant with Cohen — no evidence that defendant ever had any conversation with him in reference to collecting money from these persons. That defendant authorized him to do so can be gathered only from the circumstances shown in...