State v. Binder
| Decision Date | 15 December 1933 |
| Docket Number | No. 29551.,29551. |
| Citation | 190 Minn. 305,251 N.W. 665 |
| Parties | STATE v. BINDER. |
| Court | Minnesota Supreme Court |
Writ of certiorari to the lower court to review criminal contempt proceedings under which relator, Ben Binder, hereinafter referred to as defendant, was found guilty and sentenced to pay a fine of $50. The state contends that, during the course of a criminal trial for murder, defendant attempted to procure two men, Frank Thelin and Edward Malmstedt, to appear as witnesses and to testify falsely respecting the description of the men who committed the murder. As a matter of fact, neither Thelin nor Malmstedt had been at the scene of the crime, nor had either observed its commission or had an opportunity to observe the murderers. In consideration for so testifying, the state alleges that defendant agreed to pay each of them a substantial sum of money. Though apparently defendant never paid Thelin anything, he did pay Malmstedt $2 under circumstances hereafter related. During the murder trial the alleged agreement was discovered. Neither Thelin nor Malmstedt appeared at the murder trial, and consequently neither did any testifying. The murder trial resulted in a conviction, and subsequently a warrant was issued for the arrest of this defendant. Defendant appeared specially and contested the jurisdiction of the court on the ground that the warrant for his arrest, though required by 2 Mason Minn. St. 1927, § 9798, to state whether or not the person charged should be admitted to bail, did not so state. The trial court ruled against this contention, however, heard the case on the merits, and pronounced defendant guilty of contempt.
Two questions are here involved: (1) Did the court err in overruling defendant's special appearance? (2) Was the evidence sufficient to warrant the finding that defendant was guilty of a constructive contempt?
1. 2 Mason Minn. St. 1927, § 9798, provides:
There is no question but that the warrant for defendant's arrest did not contain this specification. Further, it cannot be contended that defendant waived his objection to the court's jurisdiction over his person, for he made what appears to us to be in all respects a valid special appearance as soon as the trial opened and before he had asked to be released on bail or had entered his plea of not guilty. We do not think, however, that this defect in the warrant deprived the court of jurisdiction.
"The only function of the warrant in a criminal case is to enable the court to acquire jurisdiction of the person of the defendant by bringing him before the court to answer the charge made against him." State v. Nugent, 108 Minn. 267, 269, 121 N. W. 898, 899.
As soon as defendant is in court and the warrant is returned, it is functus officio. The defendant then being before the court, it matters not that the warrant for his arrest was defective. It has been said by this and other courts that, even though the arrest is illegal and unauthorized, if defendant is before the court, the court has jurisdiction. So in Commonwealth v. Tay, 170 Mass. 192, 193, 48 N. E. 1086, quoted with approval in State v. Volk, 144 Minn. 223, 225, 174 N. W. 883, the court said:
In State v. Volk, supra, the court held that, where a defendant was before the court on one criminal charge, he could be tried on a second charge preferred against him, without the formality of issuing a warrant for his arrest on the second charge. In State v. Chandler, 158 Minn. 447, 197 N. W. 847, the court held that it had jurisdiction over defendant's person even though the defendant was improperly brought into the state, having wrongfully been taken from the state of Iowa. A fortiori if the court has jurisdiction where the arrest is illegal, where there is no warrant at all, or where the defendant is illegally brought into the state, it has jurisdiction in a case such as this where the warrant embodied merely a technical defect in that it contained no specification as to bail. The important thing is that defendant actually was brought before the court. Conceivably defendant validly could have resisted arrest, but this factor does not deprive the court of jurisdiction over the defendant's person. We are fully cognizant of a dictum in Papke v. Papke, 30 Minn. 260, 262, 15 N. W. 117, which is contrary to what we here have said, but we feel that the decisions of this court rendered since that time require that such dictum be disregarded. To hold here that the court had no jurisdiction would be to allow defendant to escape the arm of the law by virtue of one of the technical niceties which inhere in criminal procedure.
2. Assuming without deciding that the affidavits were sufficient in this case to warrant the court to proceed to a hearing on the merits, and assuming that the allegations, if proved, constituted a contempt under 2 Mason Minn. St. 1927, § 9793(7), despite the fact that Malmstedt and Thelin never appeared in court and so never by overt act interfered "with the process or proceedings of a court," we come to the more important and vital question of whether or not the evidence is sufficient to warrant a finding that defendant was guilty of contempt. The evidence shows that one Kaiser, a restaurant owner doing business near the place where the aforementioned murder was committed, approached both Thelin and Malmstedt at different times. He informed each of them that a murder trial was in progress, that defendant Binder was looking for witnesses, and suggested that, since there was a "lot of money" behind the case, each could make $100 or more by becoming witnesses for the defense. Neither Thelin nor Malmstedt had witnessed the murder. It appears that Thelin never had contact with Binder. Malmstedt on the other hand did have such contact. On three occasions Malmstedt and Binder met. On the first occasion Kaiser introduced Malmstedt to Binder on the street. On the second occasion Malmstedt met Binder in a downtown hotel by appointment. The third meeting occurred in a café. The first and third meetings are of no importance and substantially may be disregarded, for at neither of them was there any conversation concerning the testimony Malmstedt was to give. From the record it appears that the following conversation was had between Malmstedt and Binder at the second meeting in the hotel:
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