State v. La Bar

Citation155 N.W. 211,131 Minn. 432
Decision Date17 December 1915
Docket NumberNo. 19528[16].,19528[16].
PartiesSTATE v. LA BAR.
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

Appeal from District Court, Hennepin County; Charles S. Jelley, Judge.

Daniel La Bar was convicted of swindling, and appeals. Reversed, and new trial granted.

Syllabus by the Court

Where an attempt is made to impeach a witness by showing that he had previously made statements inconsistent with his testimony, evidence that he had also previously made statements consistent with such testimony is not admissible to offset or overcome the discrediting effect of such contradictory statements. But under an exception to this rule, if an attempt be made to show that the testimony is a late fabrication, induced by some recent influence or motive, or made to meet exigencies which have recently arisen, statements consistent with such testimony, made before the influence or motive existed or the exigency could have been foreseen, may be presented to refute such contention.

The testimony of the witness Coyle is all that connects defendant with the commission of the offense charged. Defendant presented evidence to show that Coyle had previously made statements inconsistent with his testimony. In rebuttal, over the objection of defendant, the prosecution presented evidence to show that Coyle had previously made statements in accordance with his testimony. Held, that the rule, not the exception, applies in this case, and that the admission of such evidence was error for which a new trial must be granted. E. S. Cary and Hall, Tautges & Sapiro, all of Minneapolis, for appellant.

Lyndon A. Smith, Atty. Gen., and John M. Rees and George W. Armstrong, both of Minneapolis, for the State.

TAYLOR, C.

The defendant was convicted of the crime of swindling. He made a motion for a new trial and appealed from the order denying his motion.

The prosecution charged that defendant and two other men, known as D. E. Graham and Edward Dixson, feloniously obtained $5,000 from one Edward W. Coyle by means of what is termed in the record as the, ‘fake race horse or wire tapping game.’ The crime was committed in the city of Minneapolis. We shall not attempt to explain or outline the details of the scheme.

Coyle reported his loss at police headquarters, and spent some days going about the city in company with police detectives in an attempt to locate the place where he had been despoiled of his money and to identify the men who had victimized him. At the trial, he identified the defendant positively as the man to whom he gave the money. There is no other evidence connecting defendant with the transaction. Defendant sought to impeach Coyle's testimony in this respect by presenting the testimony of police officers and newspaper reporters to the effect that he had stated to them, shortly after the occurrence, that he had given the money to Dixson, then known to him under the name of Wood, and that he was unable to describe or identify any of the persons connected with the matter except Graham and Dixson or Wood. In rebuttal the prosecution called the sheriff and deputy sheriff, and they were permitted to testify, over defendant's objection, that Coyle had stated to them that he gave the money, not to Graham or Dixson, but to a man acting as cashier, and that he described this cashier. They were also permitted to state the description which he gave of the cashier; this description fitted the defendant, but did not fit either Graham or Dixson.

[1][2] Defendant urges that the admission of this testimony was error; and his contention is supported by the great weight of authority. Where the adverse party, for the purpose of discrediting a witness, presents evidence that the witness has previously made statements inconsistent with his testimony, it is well settled that the party producing the witness cannot present other statements previously made by him, consistent with his testimony, to offset or overcome the discrediting effect of such contradictory statements. Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed. 475;Conrad v. Griffey, 11 How. 480, 13 L. Ed. 779;McKelton v. State, 86 Ala. 594,6 South. 301;Jones v. State, 107 Ala. 93,18 South. 237;Burks v. State, 78 Ark. 271, 93 S. W. 983,8 Ann. Cas. 476;People v. Doyell, 48 Cal. 85;Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am. St. Rep. 310;Davis v. Graham, 2 Colo. App. 210, 29 Pac. 1007;Connor v. People, 18 Colo. 373, 33 Pac. 159,25 L. R. A. 341, 36 Am. St. Rep. 295;Cook v. State, 124 Ga. 653, 53 S. E. 104;State v. Porter, 74 Iowa, 623, 38 N. W. 514;Chicago, etc., v. Matthieson, 212 Ill. 292, 72 N. E. 443;Edwards v. Commonwealth, 145 Ky. 560, 140 S. W. 1046; Ware v. Ware, 8 Greenl. (8 Me.) 42; Commonwealth v. Jenkins, 10 Gray (Mass.) 485;Commonwealth v. Tucker, 189 Mass....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT