State v. Axilrod

• Decision Date: 15 November 1956
• Docket Number: No. 36807,36807
• Citation: 248 Minn. 204,79 N.W.2d 677
• Parties: STATE of Minnesota, Respondent, v. A. Arnold AXILROD, Appellant.
• Court: Minnesota Supreme Court

Page 677

79 N.W.2d 677

248 Minn. 204

STATE of Minnesota, Respondent, v. A. Arnold AXILROD, Appellant.

No. 36807.

Supreme Court of Minnesota.

Nov. 15, 1956.

Rehearing Denied Dec. 14, 1956.

SYLLABUS BY THE COURT.

1. While a defendant may have a right to take and use depositions in a criminal proceeding, the source of the right, if there is any, is not to be found in the rules

of civil procedure. Consequently, the deposition-discovery device, which is authorized only under the rules of civil procedure, is not available in criminal cases.

2. The attendant publicity and certain remarks of the trial judge and prosecuting attorney did not prejudice the defendant to the extent of depriving him of a fair and impartial trial.

3. Since the propriety of permitting leading questions on direct examination depends upon the particular circumstances of each case, the determination rests largely in the discretion of the trial court. Held, under the circumstances of this case, the trial court did not commit reversible error by failing to call certain witness on its own initiative or in refusing to permit the defendant to ask the witness leading questions on direct examination.

4. The trial court did not err in allowing evidence as to a witness' reputation for truth and veracity where the impeaching testimony was based upon a relatively brief period of time and confined primarily to the community in which the witness worked rather than that in which he actually resided.

5. Upon consideration of the evidence, Held tht it is amply sufficient to sustain the verdict of conviction.

6. Held that the instructions, viewed in their entirety, adequately and fairly explained the law of the case.

7. Other assignments of error considered and found to be without merit.

Affirmed.

Sydney W. Goff, Richard B. Ryan, St. Paul, for appellant.

Miles Lord, Atty. Gen., John R. Murphy, Asst. Atty. Gen., George M. Scott, County Atty., Per M. Larson and Bruce C. Stone, Asst. County Attys., Minneapolis, for respondent.

DELL, Chief Justice.

Defendant was indicted by the grand jury of Hennepin County on a charge of murder in the first degree. He entered a plea of not guilty, was tried by a jury and found guilty of manslaughter in the first degree. He appeals from the judgment of conviction.

On the morning of April 23, 1955, the dead body of a 21-year-old girl was found in an alley in Minneapolis. There was considerable expert testimony that death resulted from manual strangulation. An autopsy revealed that the deceased was about three and one-half months pregnant. It also revealed evidence of sexual intercourse shortly before her death. Although married, the deceased had not seen her husband, who was in military service overseas, for over a year. For some four months prior to her death, she had been living with her father in Minneapolis.

The defendant, a married man 50 years of age, was a dentist practicing in Minneapolis. There was evidence that the deceased was a patient of the defendant; that he had on two occasions brought her home apparently under the influence of sedatives; that the deceased had accused the defendant of being responsible for her pregnancy; that on one occasion, about a month before her death, she had stated to him at his office 'You know that pill you gave me and now I am pregnant'; that during the investigation he first stated that he had not seen the deceased for several days, probably a week, before her death and that she had not been in his automobile the night before the body was found but later said 'I guess there is no need to beat any longer behind the bush' and admitted that he had treated the deceased the evening before the body was discovered and had discussed the matter of her pregnancy; that on that same night they had left the defendant's office together and had driven around in defendant's automobile in the vicinity in which the body was found; that during ride the deceased became insistent and 'accusing' and threatened to expose the defendant to the world; that this caused the defendant to become very angry and he told the officials investigating the death that he 'blacked out,' recovering to find himself alone in the car. There was other evidence of statements by the defendant that the jury was justified in construing as admissions of assault upon the deceased.

The defendant, in an unnecessarily long, 257-page brief, lists 37 assignments of error, states 19 points to his argument, and sets forth 4 legal issues or questions as being involved.

1. Defendant's first assignment of error relates to the contention that the trial court erred to defendant's substantial prejudice in denying his motion for an order permitting him to take 'discovery depositions,' in the manner provided by the rules of civil procedure, of persons alleged to have knowledge of relevant facts. The motion was denied on the ground that depositions for discovery purposes are authorized only in civil cases and are not available in criminal cases.

The deposition-discovery device was first authorized in this state under the rules of civil procedure, effective January 1, 1952. ¹ The statute under which the rules of civil procedure were promulgated provides in part:

'The supreme court of this state shall have the power to regulate the pleadings, practice, procedure, and the forms thereof In civil actions * * *.' ² (Italics supplied.)

In defining the scope of the rules, Rule 1, Rules of Civil Procedure, provides in part:

'These rules govern the procedure in the district courts of the State of Minnesota In all suits of a civil nature, * * *.' (Italics supplied.)

Nevertheless, defendant contends that by virtue of M.S.A. § 611.08 the deposition-discovery device of the rules of civil procedure applies in criminal cases as well as in civil actions. Section 611.08 provides in part:

'Upon cause shown to the court in which any criminal action is pending, a judge thereof may be order allow depositions of witnesses on behalf of the prisoner to be taken in the same manner and in like cases where they may be taken in civil actions. The depositions so taken may be used upon the trial of the defendant, in his behalf, as depositions are now allowed and used in civil actions.' ³

At the time of the enactment of this section in 1876, ⁴ depositions could be taken in civil actions only for the purpose of obtaining evidence for use at the trial where a witness, because of certain specified reasons, was unable to appear, or for the perpetuation of testimony. ⁵ However, defendant points out that, where a statute adopts the law generally relating to a subject matter, it adopts that law as it exists from time to time and not as it exists at the time the adopting statute is enacted. ⁶ He concludes, therefore, that § 611.08 incorporates the deposition-discovery mechanism now provided for in the rules of civil procedure even though depositions for discovery purposes were not permitted at the time § 611.08 was enacted.

Even if we were to assume that the legislature, in enacting § 611.08, intended that depositions should be permitted in criminal cases to the same extent that they might subsequently be permitted in civil cases, ⁷ we cannot agree with defendant's conclusion. Regardless of existing statutes, there is nothing to prevent the legislature from subsequently enacting laws to apply Exclusively to procedure in civil cases or to authorize the promulgation of rules of procedure exclusively for civil cases. M.S.A. § 480.051 clearly limits the authority of this court to the promulgation of rules governing civil actions, and the rules themselves are specifically so limited in application. ⁸

The right of a defendant in a criminal proceeding to take and use depositions under other existing statutes is not before us. It is sufficient that the source of the right, if there is any, is not to be found in the rules of civil procedure and hence does not include the right to take depositions for discovery purposes.

2. Assignments of error 2 through 10 relate to the attendant publicity and certain remarks of the trial judge and the prosecuting attorney as prejudicing the defendant and denying him a fair and impartial trial. An examination of these contentions reveals no reversible error, and it would serve no useful purpose to comment on them.

3. Assignments of error 3, 11, and 13 through 17 relate to the witness, Donald V. Newton. Defendant's primary contention is that the trial court erred in refusing to call Newton as a witness for the court and in not permitting defendant to ask him leading questions on direct examination. It is generally held that a trial court has no affirmative duty to call a witness on its own initiative. ⁹ However, where a witness is obviously hostile or unwilling, 'leading questions' may be permitted for the purpose of eliciting facts ¹⁰ inasmuch as there is little, if any, danger of counsel effectively suggesting specific answers. ¹¹ Since the propriety of allowing leading questions depends upon the particular circumstances of each case, the determination rests largely in the discretion of the trial court. As pointed out by Professor Wigmore, 3 Wigmore, Evidence (3 ed.) § 770:

'It follows, from the broad and flexible character of the controlling principle, that its application must rest largely, if not entirely, In the hands of the trial Court. So much depends on the circumstances of each case, the demeanor of each witness, and the tenor of the preceding questions, that it would be unwise, if not impossible, to attempt in an appellate tribunal to consider each instance adequately.'

And in Usher v. Eckhardt, 176 Minn. 210, 214, 222 N.W. 924, 925, we said:

'The control of a trial court over the matter of allowing leading questions is practically absolute; and it will only be in instances where the power has been grossly abused, resulting in a manifest miscarriage of justice, that a new trial will be granted. (Citing cases.)'

Althou...