State v. Armstrong

• Decision Date: 11 February 1960
• Docket Number: No. 37474,37474
• Citation: State v. Armstrong, 257 Minn. 295, 101 N.W.2d 398 (Minn. 1960)
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Ernest L. ARMSTRONG, Relator.

Page 398

101 N.W.2d 398

257 Minn. 295

STATE of Minnesota, Respondent, v.Ernest L. ARMSTRONG, Relator.

No. 37474.

Supreme Court of Minnesota.

Feb. 11, 1960.

Syllabus by the Court.

1.The appellate court upon review of the evidence on a claim that the evidence was insufficient to support the verdict must take the most favorable view of the state's testimony of which it is reasonably susceptible, and it must be assumed that the jury believed the state's testimony and disbelieved that which contradicted it.

2.Under M.S.A. § 634.04 it is not required that a case be made out against a person accused of a crime sufficient for his conviction before the testimony of an accomplice can be considered, but the corroborating evidence must, independent of the testimony of the accomplice, tend in some degree to establish the guilt of the accused.

3.If two or more accomplices are produced as witnesses they are not deemed to corroborate each other; but the same rule is applied and the same confirmation is required as if they were but one.

4.The rule is satisfied if the corroborative evidence in some substantial degree tends to affirm the truth of the accomplice's testimony and to point to the guilt of the defendant.It need not be sufficiently weighty that standing alone it would make out a prima facie case or sustain a conviction.The corroboration may come from the testimony of the defendant himself.Circumstantial evidence may be sufficient to corroborate the testimony of an accomplice.

5.The statute does not make an accomplice incompetent but does require corroborative evidence.

6.An accomplice who has pleaded guilty is not disqualified from testifying against other defendants.

7.The state's proof in the instant case raised a strong case of both direct and circumstantial evidence from which the jury would be entitled to find the defendant guilty as charged, the corroborating testimony having fully met the requirements of the statute.

8.A defendant who pleads to an indictment in the district court without objection waives an amendable irregularity in the indictment.

9.A party, when surprised by adverse testimony, may, in the discretion of the court, contradict the testimony of his own witness.

10.The law makes no distinction between circumstantial evidence and direct evidence as to the degree of proof required for conviction, but respects each for such convincing force as it may carry and accepts each as a reasonable method of proof; either will support a verdict of guilty if it carries the convincing quality required by law.

Ernest L. Armstrong pro se.

Miles Lord, Atty. Gen., William B. Randall, County Atty., Frederick O. Arneson, Asst. County Atty., St. Paul, for respondent.

NELSON, Justice.

Ernest Armstrong was accused of robbery in the first degree and entered a plea of not guilty to the charge.Prior to defendant's entry of his plea, pursuant to a motion by the county attorney, the court entered its order substituting the name of Ernest Armstrong for the name of Richard Roe.The transcript indicates that during the trial Ernest Armstrong was referred to as Ernest L. Armstrong, Ernest Bubba Armstrong, and Bubba Armstrong, without any attempt at correction or objection on the part of the defense.

Defendant was tried before a jury, which returned a verdict of guilty.Before sentence defendant was again arraigned on a second information charging that he had been previously convicted of manslaughter in the first degree, and defendant admitted that he was the person so convicted.He was thereupon sentenced to a term according to law in a penal institution of this state for the offense of which he was convicted and one prior felony conviction.

Defendant petitioned this court for a writ of error, which it issued, and after serving his original brief, he petitioned the district court as an indigent for a transcript of the testimony at the trial.The district judge who presided at the trial ordered a transcript at county expense, including all the testimony produced at the trial and those portions of the state's summation in which a gun had been mentioned.The state produced 13 witnesses, all of whom testified at the trial.The defense offered no witnesses.

A search of the transcript suggests that the following facts are representative of the state's testimony and controlling on the issues herein: Prior to and on April 12, 1957, Eugene Harris and Thamin H. Foster occupied rooms as tenants at a Minneapolis residence described as 815 16th Avenue South.On the morning of April 12, a lady tenant living at the same address awakened Harris to answer a phone call from Ernest Armstrong.Harris answered the phone call in Foster's room, Foster being absent and in the bathroom at the moment.Armstrong asked Harris if he had a car or if he knew anyone who did and, if so, to inquire of that person if he would like to make a little run.Foster returned to his room while the telephone conversation was in progress, and Harris asked him if he wanted to drive a man.Foster asked Harris where the man wanted to go.Harris relayed the question to Armstrong, who said he wanted to go out on 'Thirty-eighth and something.'Armstrong said he would buy the gas.Foster agreed to do this, and Harris then told Armstrong that they would pick him up at his house in about an hour.

Armstrong at that time lived at 1143 North Bryant, Minneapolis.Foster, accompanied by Harris in the front seat, drove his car to that address.Armstrong came out with two companions, Charles R. Douglas and David James.The three men got into the back seat of the car and one of the three directed Foster where to go.Foster stopped according to directions and the three men in the rear seat got out and Foster and Harris continued to circle the block.The three men entered a place on Chicago Avenue, just off 38th Street, where Verna Brown, who appeared as a witness for the state, operated a business called the Christy Office in partnership with one Orlin A. Hess.

Mrs. Brown testified at the trial that it was midmorning on April 12 when her sister, who was working alone in the front office, summoned her by a buzzer.Mrs. Brown entered the room and found her sister looking a bit panicky because three colored men were spaced out in front of the counter.Mr. Hess, who also came to the front office, asked the men what they wanted.Armstrong, whom Mrs. Brown identified at the trial, asked for a driver's instruction manual, and Mr. Hess picked one up and slid it down the counter to him.It appears that nothing else was said.At the trial Mrs. Brown identified each of the three men, stating that the one standing closest to her at the time was Douglas.She described in detail the clothing that each wore, and she testified that Armstrong, who was in the middle, wore a moustache which she described as fairly little, leaving the upper lip in relief.She also testified that the thrid man, identified as James, wore chin whiskers.

The three men only stayed about three minutes and left.Mrs. Brown discovered a money order blank missing from the counter, and some one in the office called the police.She watched the three men through the large front window after they left through the door located at the front left side of the office.They turned to the right, passed the front window, and walked on down to the next corner.Mrs. Brown's identification of Armstrong and each of his two companions was positive.The transcript discloses that defense counsel crossexamined Mrs. Brown at considerable length, seeking to break down her testimony, and at last risked what might be termed the ultimate question as to whether Armstrong was one of the three colored men in the office that morning:

'Q.Youwould bet your life on that would you, Mrs. Brown?

'A.That is quite a high stake, yes.'

Douglas, James, and Armstrong reentered the rear seat of the Foster car and Foster and Harris continued to occupy the front seat.One of the three directed that they drive to the office of the Como Shops Credit Union in St. Paul.Foster drove the car in search of the credit union but found the way blocked by a trian.There was a back-seat suggestion that he turn around and drive to the Teddy Bar on Rondo Street, which was operated by one Russell Caldwell.All five entered the bar.Harris spoke with Caldwell briefly, listened to a record, and then left for a house across the street.About 15 minutes later he returned to the bar and as he reentered someone said, 'Come on, let's go.'The five men got into the car as before and proceeded toward the credit union office.

When they reached the credit union office, Foster drove into a parking space about five or six cars from the office entrance, turning off the engine and heading his car toward a number of railroad tracks.Armstrong, James, and Douglas got out and walked behind the parked cars toward the office entrance.Foster and Harris remained in the car listening to the radio.The three men returned once, walking past the car.They then proceeded back toward the entrance.In 5 or 10 minutes, the three men returned to the car and said, 'Let's go.'On the journey back to Minneapolis someone in the back seat dropped $200 in bills into the front seat, stating that Foster and Harris were to split it and that Foster was to get his car fixed in order to drive the men to Chicago.Foster was supposed to put his car in the shop that night or the next day for repairs.When they returned to the residence where Foster and Harris lived, all five got out of the car.Harris went upstairs and phoned for a cab, in which Armstrong and James later left.Foster fixed himself a sandwich.Douglas asked Foster to drive him to North Minneapolis.After Harris and Foster had driven Douglas to North Minneapolis, the two of them went to a downtown bar and cafe.

It is clear from the transcript that Foster and Harris, while accomplices, each positively and independently...