State v. Ames

• Decision Date: 09 July 1903
• Docket Number: 13,480 - (24)
• Parties: STATE v. FREDERICK W. AMES
• Court: Minnesota Supreme Court

96 N.W. 330

90 Minn. 183

STATE v. FREDERICK W. AMES

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.

SYLLABUS

Challenge to Grand Jurors.

Challenges to individual grand jurors, based upon the ground of prejudice or bias, can be interposed only before the jury is sworn.

Challenge to Grand Jurors.

Such challenges cannot be made at the time of arraignment, by way of a plea in abatement or motion to quash the indictment under G.S. 1894, § 7189. That section provides only for challenges or objections going to the regularity of the proceedings in the selection and formation of the jury.

Receiving Bribe.

Defendant was indicted for having, while acting as superintendent of the police department of the city of Minneapolis, received a bribe from one Mills, under an agreement to protect her in an unlawful occupation in said city. The evidence showed that Mills paid the money to one Cohen, who, the state claimed was acting for defendant in receiving the same. It is held, taking the evidence altogether, that it is sufficient to justify the jury in finding that Cohen was acting for and in behalf of defendant; that the payment to him was equivalent to a payment to defendant personally.

Evidence of Other Crimes.

Evidence of the commission of other crimes by defendant is competent if it tends corroboratively or directly to establish his guilt of the crime charged in the indictment on trial, or some essential ingredient thereof. Such evidence tends to establish guilt if it discloses a motive, a criminal intent, guilty knowledge, identifies defendant, or is part of a common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to prove the other. Under this rule, it is held that evidence that other persons paid money to Cohen in consideration of official protection in an unlawful occupation, similar to that engaged in by witness Mills, was properly received. It tended (a) to connect Cohen and defendant as being jointly concerned in such unlawful transactions, and to show that defendant authorized Cohen to act for him in receiving the money; and (b) the evidence, taken as a whole, tended to show that the payments by the different persons were all made as a part of a common scheme or plan instigated and carried on by defendant and Cohen to solicit and receive such bribes. State v. Fitchette, 88 Minn. 145, distinguished.

Instructions to Jury.

The court charged the jury generally to consider all the evidence before them, and particularly that certain evidence offered by defendant, tending to show his previous good character, was competent, as tending to show that he would not be likely to commit the crime charged against him. Held, that it was not necessary, in addition to these specific directions, for the court to go further, and specially say to the jury that they must consider the evidence of good character.

Instructions to Jury. -- Testimony of Defendant.

The court charged the jury that it was defendant's right and privilege to be sworn as a witness in his own behalf; that they "should consider his testimony, together with all the other testimony in the case, and give it such weight as in your judgment it should receive, bearing in mind, of course, the fact that he has a vital interest in the outcome of this case, and applying to his testimony the same rules of credibility that you apply to any other witness in the case." Held not error.

Verdict Sustained by Evidence.

Other assignments of error examined, and held not well taken; and held, further, that the verdict is sustained by the evidence.

Welch, Hayne & Hubachek, for appellant.

The right to challenge the jurors exists as well after, as before, the indictment is found. G.S. 1894, §§ 7188-7192, 7283; State v. Russell, 69 Minn. 502; State v. Osborne, 61 Iowa 330.

In criminal cases the principal is not answerable for acts of his agent as in civil cases; each must answer for his own acts and stand or fall by his own behavior. To affect the superior by the act of the agent there must be the command of the superior. Rex v. Huggins, 2 Strange, 882; 2 Greenleaf, Ev., § 68; Reinhard, Ag., § 361; Morse v. State, 6 Conn. 9; Pearce v. Foote, 113 Ill. 228.

If it is competent in any case to establish the understanding or agreement which must be shown under the statute in order to constitute the offense, by inference or anything short of an express agreement, certainly that inference must be drawn from the facts and circumstances shown and not from the opinion of any witness. People v. McLaughlin, 150 N.Y. 365; State v. Garvey, 11 Minn. 95 (154); State v. Pierce, 85 Minn. 101.

It is improper on the trial of a defendant for a crime to prove that he has committed other crimes, having no connection with the one under investigation. State v. Fitchette, 88 Minn. 145; State v. Gardner, 88 Minn. 130; Roscoe, Cr. Ev. (11th Ed.) 87; Wharton, Cr. Ev. (9th Ed.) § 29; Underhill, Cr. Ev., § 87; 3 Rice, Cr. Ev., § 153, et seq.; People v. Molyneux, 168 N.Y. 264.

The evidence in the case did not come within any of the exceptions to the rule excluding evidence of other offenses. Wharton, Cr. Ev. (9th Ed.) § 48; Underhill, Cr. Ev. § 58; Abbott, Tr. Br. Cr. 410; 1 Bishop, New Cr. Proc. (4th Ed.) § 1120; People v. Sharp, 107 N.Y. 427; Gunning v. People, 86 Ill.App. 676; 1 Bishop, New Cr. Proc. (4th Ed.) § 523; McCutcheon v. People, 69 Ill. 601.

Evidence of the defendant's good character may generate and create a doubt as to his guilt and is to be considered with the other evidence in the case. State v. Van Kuran, 25 Utah 8; Williams v. State, 52 Ala. 411; People v. Bowman, 81 Cal. 566; State v. Howell, 100 Mo. 628; Remsen v. People, 43 N.Y. 6; U.S. v. Jones, 31 F. 718; Hanney v. Commonwealth, 116 Pa. St. 322; Heine v. Commonwealth, 91 Pa. St. 145; Commonwealth v. Cleary, 135 Pa. St., 64.

The court violated the rule which prohibits the trial court from charging the jury as to the credibility of particular witnesses. Wood v. State, 48 Ga. 192; State v. Hoy, 83 Minn. 286; Harriott v. Holmes, 77 Minn. 245; State v. Nestaval, 72 Minn. 419; Goodhue F.W. Co. v. Davis, 81 Minn. 211. See also People v. Lang, 104 Cal. 363; State v. Webb (Idaho) 55 P. 892.

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.

There was no error in receiving the evidence tending to show other offenses. The test of the admissibility is whether the evidence "tends to prove the commission of the crime charged," or "is in some way relevant to the issue." State v. Lawlor, 28 Minn. 216; State v. Barrett, 40 Minn. 65; State v. Madigan, 57 Minn. 425; State v. Hayward, 62 Minn. 474; State v. Wilson, 72 Minn. 522; State v. Durnam, 73 Minn. 150; State v. Southall, 77 Minn. 296; State v. Sodini, 84 Minn. 444; State v. Bourne, 86 Minn. 426.

Evidence should be excluded which tends to the proof of collateral facts only. It should be admitted, if it has a natural tendency to establish the fact in controversy. Commonwealth v. Merriam, 14 Pick. 518.

The evidence of other offenses in this case comes under at least three exceptions to the rule excluding evidence of a crime other than the one under investigation, viz.: It tended (1) to identify the witness as defendant's instrumentality and to confirm defendant's connection with the crime; (2) to show defendant's motive and intent; (3) to show parts of a common scheme, plan, system and transaction involving the offense for which appellant was on trial. Wallace v. State, 41 Fla. 547.

It is sometimes said that such evidence may be introduced where the several crimes form part of an entire transaction, but it is perhaps better to say, where they have some connection with each other, as a part of the same plan or induced by the same motive. Commonwealth v. Robinson, 146 Mass. 571; Kelley v. People, 55 N.Y. 565; People v. McKane, 143 N.Y. 455; People v. Van Tassel, 156 N.Y. 561; State v. Palmer, 79 Minn. 428; Wallace v. State, supra; State v. Gardner, 88 Minn. 130.

It is not proper to show defendant's general good character in any criminal prosecution. Such proof must be limited to the trait of character affected by the particular case. Peake v. Conlan, 43 Iowa 297; People v. Fair, 43 Cal. 137, 148; State v. King, 78 Mo. 555; State v. Pearce, 15 Nev. 188; Walker v. State, 102 Ind. 502; State v. Bloom, 68 Ind. 54, 57; Johnson v. State, 94 Ala. 35; Pate v. State, 94 Ala. 14; Commonwealth v. Wilson, 152 Mass. 12; People v. Bowman, 81 Cal. 566.

OPINION

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...