State v. Baker
| Decision Date | 14 November 1924 |
| Docket Number | 24,134 |
| Citation | 200 N.W. 815,161 Minn. 1 |
| Parties | STATE v. HARRY A. BAKER |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury of Hennepin county charged with the crime of manslaughter in the first degree tried in the district court for that county before Montgomery, J., and a jury which found him guilty as charged in the indictment. From an order denying his motion for a new trial, defendant appealed. Affirmed.
No new trial in criminal case when evidence warrants conviction, when.
1. In a criminal case a new trial will not be granted for refusal to dismiss when the state rested, if the evidence as finally in warrants the conviction.
Accused cannot urge error in hypothetical question.
2. The defendant is not in position to urge error in a hypothetical question for he omitted, when requested by the court, to point out the elements that were improperly included, and further the record discloses that no prejudice resulted.
Evidence sufficient to connect accused with the crime.
3. The testimony, aside from that of the accomplice, sufficiently connected defendant with the crime charged.
Charge proper.
4. There was no error in the instructions excepted to.
Dahl & McDonald and Eloi Bauers, for appellant.
Clifford L. Hilton, Attorney General, Floyd B. Olson, County Attorney, and William G. Compton, Assistant County Attorney, for respondent.
Defendant was convicted of manslaughter caused by an illegal abortion, performed by him upon a young woman, and appeals from the order denying a new trial.
Error is assigned upon the refusal of the court to dismiss for lack of proof when the state rested. Defendant did not see fit to rest, but introduced his evidence in defense. In that situation the practice is well settled in civil cases. "The denial of a motion to dismiss or of a motion for judgment will never be reversed in this court if evidence sufficient to sustain the respondent's case is received at any time during the trial." Weide v. City of St. Paul, 126 Minn. 491, 148 N.W. 304; Busack v. Johnson, 129 Minn. 364, 152 N.W. 757. The same rule should obtain in a criminal case. Therefore, if there was a case for the jury when all the evidence was in, error in the ruling is not ground for a new trial or reversal.
The doctor who conducted the autopsy upon the young woman was asked to give an opinion as to the cause of her death, and doing so to base his answer not only upon his own observations but also upon the assumption of the truth of all preceding testimony. Defendant objected on the ground that the question was not a proper hypothetical question upon which to base an expert opinion. To the court's inquiry as to why it was improper counsel said: "Well, it includes in it improper elements for a hypothetical question." Again the court inquired: "Well, what improper elements?" The response was: "Basing it on the testimony of witnesses he has heard." The witnesses referred to were Anderson, the young man who bargained with and paid defendant to perform the abortion Meyers, a companion, who first went with Anderson to defendant's office, the physician who was called to attend the young woman a few days after the alleged illegal abortion, and the nurse and pathologist who participated in making a microscopic slide from the matter removed from the uterus of the woman. Very convincingly defendant's counsel points out the impropriety of asking the expert to base an opinion in part on the assumption of the truth of Anderson's and Meyer's testimony. However, the symptoms and findings testified to by the physician who attended the young woman during her illness and the testimony as to the manner in which the slide was obtained were properly included in the hypothetical question. It was counsel's duty, especially when requested by the court, clearly to point out the objectionable elements. This was not done. But that aside, the error inhering in the question worked no wrong to defendant. His counsel's skillful and searching cross-examination of the two medical experts for the state, who answered the hypothetical questions objected to, clearly brought out that the opinions they expressed were based wholly upon their observations and findings and that part of the preceding testimony proper to be considered by them. It is plain that neither one took Meyer's testimony into account, or Anderson's concerning the employment of defendant to perform the abortion, or the expert opinion elicited from the physician who was...
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