State v. Currie, 38913

• Decision Date: 14 February 1964
• Docket Number: No. 38913,38913
• Citation: State v. Currie, 267 Minn. 294, 126 N.W.2d 389 (Minn. 1964)
• Parties: STATE of Minnesota, Respondent, v. Miriam Ruth CURRIE, Appellant.
• Court: Minnesota Supreme Court

Page 389

126 N.W.2d 389

267 Minn. 294

STATE of Minnesota, Respondent, v. Miriam Ruth CURRIE, Appellant.

No. 38913.

Supreme Court of Minnesota.

Feb. 14, 1964.

Syllabus by the Court

1. A person who is originally a participant in a scheme or plan to commit a crime may withdraw before the actual commission of the crime and thereby be absolved of criminal responsibility if the crime is consummated by confederates.

2. The character of a defendant in a criminal prosecution may not be attacked by the prosecution until the defendant puts it in issue. The state may not impugn the character of defendant by insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which otherwise is inadmissible.

3. Asking questions which by innuendo leave a prejudicial supposition as to the existence of facts which cannot be proved may require a new trial even though objection to the question is sustained.

4. When a defendant takes the witness stand, the credibility of his testimony may be tested by showing that he had previously been convicted of a felony. The state may not show that he has been arrested, since an arrest is not a conviction.

5. The good faith of the prosecutor in asking improper prejudicial questions does not affect the propriety of asking them.

6. Where defendant was a participant in a scheme or plan to defraud by uttering forged drafts, it need not be shown that she actually participated in the overt act of cashing them, but, when she has adduced evidence of a withdrawal before actual commission of the crime, the state must assume the burden of proving that she remained an accomplice while the crime was consummated.

7. If a defendant introduces evidence which raises a reasonable doubt as to her withdrawal, the testimony of an accomplice that she did not withdraw must be corroborated.

Earle T. Anderson, Jr., Rollin J. Whitcomb, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, George M. Scott, County Atty., Gerard W. Snell, Asst. County Atty., Minneapolis, for respondent.

KNUTSON, Chief Justice.

Defendant was convicted of forgery in the second degree and appeals from the judgment entered pursuant thereto.

Defendant was charged by information with having, on March 30, 1962, in the city of Minneapolis, aided and abetted by Sandra Joanne Heldt and Merle Cook, 'wilfully, unlawfully, wrongfully, knowingly and feloniously, with intent to defraud, utter, dispose of and put off as true to and upon Clifford Lyle McKenzie, doing business as Music Bar, a certain false and forged instrument in writing commonly known as and called a draft,' in the amount of $127, drawn on Minnesota Wool Growers Association.

For an understanding of the case, it is necessary to relate briefly the association of the three individuals charged. Defendant was caretaker of a building owned by her mother-in-law, in which others rented rooms. Prior to the date of the alleged offense, Sandra Heldt had rented quarters from defendant but had left sometime before that date, apparently because of a dispute which arose between them. There was evidence that the dispute was due to the fact that Sandra Heldt was friendly with defendant's husband, but in any event it is admitted that they did have an argument and that Sandra Heldt left. At that time, she owed some rent for the quarters which she had been occupying.

Merle Cook also lived in the building. She worked for defendant, earning her board and keep and in addition $30 per week. She acted as babysitter for defendant's 3-year-old son and did housework.

Defendant and her husband were having trouble and at times he was away. At other times, they were reconciled and he lived at home.

Prior to the occurrence upon which the conviction is based, Sandra Heldt was employed by North Central Wool Marketing Corporation, which for the purposes of this opinion may be considered the same organization as Minnesota Wool Growers Association, the payor in the drafts involved. It is conceded that while so employed Sandra stole two books, each containing 25 blank drafts drawn on her employer. After she had stolen the first book she called defendant and asked to be met near her place of employment. Sandra and defendant then drove to defendant's home and Sandra told defendant that she had stolen a book of blank drafts and asked her whether she was interested in making some money in helping to cash them. Sandra then showed defendant how to fill in the drafts, using the name of Mary Katherine Gudgell on some and that of Carol June Kordell on the others as payee. The drafts were filled in for amounts varying from $57 to $144. Defendant claims that when she had filled in one book and about half of the other book her 3-year-old son came into the room and she realized she had too much to lose by going through with the plan so she informed Sandra Heldt that she wanted nothing more to do with it and asked her to take the drafts out with some trash and burn them.

Merle Cook was present during all of this time and completely corroborates defendant in these respects. Sandra Heldt testified that she did take some trash out, as defendant says she asked her to do, but that the drafts were not in the trash. She said that defendant was supposed to cash a book of the drafts for her, but she later admitted that Merle Cook actually cashed all the drafts that were passed. Altogether 34 or 35 drafts were passed and about $4,250 was realized out of them. Sandra Heldt testified that she received only $200 from defendant, but Merle Cook said that she herself cashed the drafts and turned the money over to Sandra; that they then divided the money and she received slightly over $2,000. She testified that defendant received no part of the loot.

Sandra Heldt had no automobile. Merle Cook testified that she had the use of defendant's car whenever she wanted it and that it was this car that was used while cashing the drafts, Sandra being with her during part of the time. She said that defendant had no knowledge of the fact that her car was being used to cash the drafts or that they had not been destroyed as she requested. The draft upon which the charge is based was cashed in Music Bar with one Clifford Lyle McKenzie. He testified that after he had cashed the draft he became suspicious and took down the license number of the car. It turned out that this car was registered in the names of Leonard Currie and Miriam R. Currie. McKenzie identified Merle Cook as the person who had passed the draft, and he said that he saw a man in the car which she entered after cashing the draft. He was unable to identify the man who was present in the car.

In the process of cashing a draft in a Red Owl store, Merle Cook's picture was taken. It was later shown on television, and when she saw it she left for Chicago. She later returned for fear that she might be guilty of a Federal offense and gave herself up to the police.

At the time of the trial of defendant, both Sandra Heldt and Merle Cook had been convicted of forgery based on this same series of events. Merle Cook had been sentenced, but, even though several months had elapsed between Sandra's trial and defendant's trial, Sandra had not yet been sentenced.

On occasions, Merle Cook had used the name Mary Katherine Gudgell. She had found some kind of a learner's permit from Iowa in the name of Mary Katherine Gudgell in one of the apartments she was cleaning. The other name, Carol June Kordell, was taken from a driver's license that Sandra Heldt had obtained bearing that name. It was necessary to have identification in order to cash these drafts.

With respect to her claim that she withdrew before the commission of the crime, defendant testified that after she had filled out one book and about half of the other book her son came into the room and--

'A. * * * I looked at Sandy and she had Jerise in her arms and I said, 'I can't do this.' I says, 'I have got more to lose than a few unpaid bills and so forth and so on.' I said, 'Take them and do with them whatever you want to do with them, just get rid of them.'

'Q. Did you then give the checks to Sandy?

'A. Yes, I did.

'Q. Did Sandy take the checks from the premises?

'A. She took them off the table and said she would burn them on the way down. I said, 'On the way down, why don't you burn the trash also?' So she took the waste basket and I know she had them in her hands.

'Q. Did she return the waste basket?

'A. No. We called her a cab and she said she would set it on the back steps and I could get it later.

'Q. Did you find it later on the back steps?

'A. Yes, I did.'

With respect to this occurrence, Sandra Heldt testified:

'Q. You don't recall her pushing the checks back to you and telling you to take them out of there?

'A. No, I don't.

'Q. You don't recall of leaving the residence by the back stairway, carrying the waste basket with the checks in it?

'A. I took some trash out for her, but not with the checks in there, as far as I know.

'Q. Not with the checks in it?

'A. No.

'Q. You did not remove those checks from that waste basket?

'A. No, I did not.'

It is admitted that the waste basket was later retrieved from the back stairs.

During the cross-examination of Merle Cook, she was asked whether she knew or was acquainted with Mary Katherine Gudgell or Carol June Kordell. She explained that she had a learner's permit from Iowa in the name of Mary Katherine Gudgell which she had found and that she had received the identification in the name of Carol June Kordell from Sandra Heldt. In pressing the matter further, the prosecuting attorney asked these questions:

'Q. Do you know who those two people are?

'A. No.

'Q. The defendant does, does she not?

'A. I don't know.

'Q. You know that she's done time with the two of them, don't you?'

Thereupon the court sustained an objection to this question, and later defendant's counsel moved for a mistrial...