State v. O'Connor
| Decision Date | 19 December 1922 |
| Docket Number | 22,791 |
| Citation | 191 N.W. 50,154 Minn. 45 |
| Parties | STATE v. CHARLES O'CONNOR |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury of Rice county charged with the crime of assault in the first degree, tried in the district court for that county before Childress, J and a jury which found him guilty of assault in the second degree. From an order denying his motion for a new trial defendant appealed. Affirmed without prejudice.
Conduct of judge not prejudicial to defendant.
1. The record does not sustain the contention that the court either by improper questions or remarks prejudiced the defense.
On appeal defendant cannot attack admission of improper evidence not objected to.
2. On rebuttal testimony was received that the reputation of the prosecuting witness for truth and veracity was good. This was wrong, for defendant had made no attack upon his character in that respect, but the error does not avail defendant for there was no objection made to its reception.
No new trial for inaccurate instruction not objected to by defendant.
3. An inaccuracy in the charge, which so escapes the attention of defendant's counsel that when asked, at the close thereof, whether he thought of anything more to say to the jury, the response was: "No, there is nothing else, your Honor," does not justify a new trial.
Conviction sustained even when witnesses differ.
4. The evidence sustains the verdict. The fact that the two witnesses produced by the state differ on important matters does not necessarily preclude the jury from finding a defendant guilty.
Objection to failure to charge on lesser degree of crime not open to defendant.
5. No complaint can be made of the failure to submit lesser degrees of a crime than the one charged where no request therefor is made.
Refusal of new trial because of newly discovered evidence.
6. There was no abuse of discretion in refusing a new trial on the ground of newly discovered evidence.
When sentence may be amended.
7. If the sentence is improper, and in disregard of section 9267 G.S. 1913, it may be amended upon application to the court below.
Quinn & Moonan and Moonan & Moonan, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Assistant Attorney General, and Lucius A. Smith, County Attorney, for respondent.
The appeal is from a conviction of assault in the second degree. After sentence, a motion for a new trial was heard and denied.
Defendant, a young farmer, resided near two tenant farmers in Waseca county by the name of Fred Cody and George B. Stehly. These neighbors had been on friendly terms, defendant and his wife having been invited by the latter to their home for ice cream on an evening a few weeks prior to the alleged assault. Shortly after that social visit, a misunderstanding seems to have arisen out of the circumstance that a young lad who was to watch cattle for Cody and Stehly was notified by defendant that he was wanted in Faribault to temporarily take his father's place as gate watchman at a railway crossing. The boy had to remain at Faribault, and thought he had by a telephone talk explained the situation to Mr. Cody. Defendant so understood. But Cody and Stehly claimed that they had heard nothing from the boy, and suspected defendant to be the cause of his not returning. This gave rise to a change of bearing towards defendant, at least he so inferred in that Cody and Stehly omitted the customary friendly greetings and looked in another direction when they passed defendant. That Cody and Stehly felt some resentment appears from their admissions that this matter had been discussed by them and they had agreed that the one first having the opportunity should ask defendant for an explanation, but neither used or attempted to use the telephone connecting the two homes. Stehly had uttered some threats, according to the evidence, which were communicated to defendant. It also appears that defendant had heart trouble and had been cautioned against excitement and over exertion. He claims that when he heard of the threats, he procured the revolver for protection. On August 3, 1921, defendant was at his brother's farm to assist in threshing. Stehly was also there. Both defendant and his brother were apprehensive that Stehly might attack the former, and the work was planned so that the two would not have occasion to come in contact. The evidence bears out defendant's contention that Stehly left his team and walked out of his way to meet defendant when none of the other men of the threshing crew were near enough to interfere. Stehly's version is that defendant pulled out the revolver when about 7 or 8 feet away and with an oath told him to go back; that Stehly did not turn back, but took one or two steps forward, and, when about an arms-length from defendant, the latter fired, the ball entering near Stehly's left nipple and passing out half an inch from the spine, the course being horizontal. Defendant on the other hand testified that, when Stehly came within about two rods from him, he warned him to go back; that instead Stehly advanced; that defendant then drew the revolver, but Stehly made a jump for defendant, grabbing the part of the revolver about defendant's hand, and that in the struggle which followed for the possession of the weapon it was accidentally discharged. As to what occurred just before and at the time the shot was fired, the state produced, in addition to the prosecuting witness, one Emil Klatt. The latter knew of Stehly's alleged threats against defendant and noticing, what seemed to him, the peculiar way in which Stehly led his team toward the defendant, he watched the outcome. He corroborates defendant as to some of the important facts and testifies that, when within seven or eight feet of defendant, Stehly took a run or jump for him, that the men grappled and the struggle lasted a minute before the revolver was discharged.
There are 78 assignments of error. They will not be separately noticed, but considered as discussed in appellant's brief. It is claimed that the conduct of the trial court was prejudicial, in that there was an undue interference with and improper examination of witnesses, and that the defense was crowded by insisting on a long evening session at the close of the trial. So far as can be gathered from the record there is no ground for the complaint. Fewer questions were asked by the court than usual in a long trial, and the questions were mostly to make clear the meaning of some doubtful expression in an answer, or to repeat some statement that the court had been unable to hear. The attorneys on both sides appear to have conducted the trial without any friction whatever. The rulings were few, and made, as a rule, without comment or explanation. Only once did the trial court become impatient apparently because the state's witness Klatt hesitated as to how fully he should answer the county attorney's questions, when a remark was made to the witness which might well have been omitted. However, the witness...
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