State v. Gandel
| Decision Date | 06 January 1928 |
| Docket Number | 26,207 |
| Citation | 217 N.W. 120,173 Minn. 305 |
| Parties | STATE v. MAX GANDEL |
| Court | Minnesota Supreme Court |
Defendant appealed fro an order of the district court for Hennepin county, Nordbye, J. denying his motion for a new trial. Affirmed.
Misconduct of counsel.
1. Alleged misconduct of counsel held not to present reversible error.
Limitation on admissible evidence that assaulted woman made prompt complaint.
2. In prosecution for rape and indecent assault, evidence that soon after the offense the woman or girl assaulted made complaint of the outrage is admissible on behalf of the state, where the female assaulted is a witness for the state.
The evidence is limited to the fact that complaint was made of an outrage or offense against the woman, and particulars of the offense or the name of the person accused may not be disclosed as part of the complaint.
Where the complaint is made at such a time and under such circumstances as to be part of the res gestae, then the entire complaint or statement, including particulars of the offense and the name of the person charged, is admissible.
Charge sustained.
3. Alleged errors in the charge held not shown.
Verdict sustained and new trial denied.
4. The evidence fully sustains the verdict, and the alleged newly discovered evidence was not such as to justify a new trial.
Assault and Battery, 5 C.J. p. 788 n. 2.
Criminal Law, 16 C.J. p. 577 n. 85; 17 C.J. p. 300 n. 33; p. 309 n 90.
Rape, 33 Cyc. p. 1463 n. 66; p. 1464 n. 67; p. 1466 n. 70.
See note in 41 L.R.A.(N.S.) 886; 2 A.L.R. 1522; 22 R.C.L. 1212, 1213; 3 R.C.L. Supp. 1306; 5 R.C.L. Supp. 1226; 6 R.C.L. Supp. 1353.
Schwartz & Halpern, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Deputy Attorney General, and Floyd B. Olson, County Attorney, for the state.
Defendant was convicted of the crime of indecent assault and appeals from a denial of his motion for a new trial.
1. Errors are assigned as to the conduct of the assistant county attorney who tried the case, in asking certain questions in the examination of witnesses and in making two statements in his argument to the jury, as set out in assignments of error numbered 3, 4, 8, 9 and 10. These assignments of error have been considered. On cross-examination of defendant's wife, the assistant county attorney asked: "You have heard other complaints against your husband for the same thing up there, have you not?" The question was objected to and the objection sustained. In his argument to the jury he started to refer to his having asked this question, but was stopped before completing any statement or sentence in reference thereto. The assistant county attorney should not have attempted to refer to this question in his argument, but the occurrence does not present reversible error on this record. The other assignments as to misconduct of counsel are unimportant.
2. A recital of the evidence as to the offense is not necessary. It is sufficient here to state that the complainant, Alfhild Lindahl, was a girl about 12 years of age. At the time the crime is charged to have been committed she was away from home, apparently to look after an apartment during the temporary absence of the housewife. Defendant lived in another apartment in the same building. Complainant was alone when defendant came to the apartment and asked to use the telephone. He brought with him his child about two years of age. After the occurrence complainant remained in the apartment and out on the lawn in front thereof with another young girl for some time. She then assisted in preparing supper for the husband of the lady for whom she was working. She testified that she made complaint to this man and that he said he would speak to defendant about it. Right after supper and some three hours after the assault, she called up her mother by telephone and made complaint. The mother was called as a witness for the state and was asked to relate what the complainant said to her over the telephone. Objection was made and overruled. The mother then testified to statements so made to her by complainant. The statements so testified to did not name the person charged and were limited in extent, but did relate at least two particulars of the offense.
There appears to be some uncertainty as to the rules governing the admissibility of statements and complaints made by the woman injured in these cases of sex offenses.
Taking indecent liberties with or on the person of a female under the age of 14 years, with or without her consent, is an indecent assault. G.S. 1923, § 10132; State v. West, 39 Minn. 321, 40 N.W. 249.
In cases of rape, attempted rape, or assault with intent to commit rape, it is the general rule that it may be shown by the testimony of the woman injured, or that of other witnesses, that the prosecutrix made complaint of the outrage soon after its commission. 22 R.C.L. p. 1212; State v. Shettleworth, 18 Minn. 191 (208); State v. Rothi, 152 Minn. 73, 188 N.W. 50. As noted in the case last cited, the rule does not apply where the injured female is not produced as a witness. The evidence is usually admitted only in corroboration of the testimony of the complainant, but is admissible as part of the state's case in chief. Conversely, it is generally held that the fact that complaint was not promptly made may be shown by defendant on cross-examination of complainant, or otherwise, to cast discredit upon her testimony.
The rule supported by the weight of authority is that the prosecutrix may testify, and the person to whom complaint is made may testify, only to the fact that complaint was made, and may not as part of such complaint state the particulars of the offense or the name of the person charged. 22 R.C.L. p. 1213; State v. Shettleworth, 18 Minn. 191 (208); Gardner v. Kellogg, 23 Minn. 463; State v. Reid, 39 Minn. 277, 39 N.W. 796; State v. Alton, 105 Minn. 410, 117 N.W. 617, 15 Ann. Cas. 806. Cases on both sides of the question are cited in the note on page 886, in 41 L.R.A.(N.S.). The rule has not been strictly observed in this state. See State v. Krantz, 138 Minn. 114, 164 N.W. 579. But it is nevertheless the rule here and should not be departed from.
It is suggested that the general rule making evidence of complaint admissible in rape cases does not apply in a case where the charge is indecent assault upon a female under the age of consent and where want of consent is not an element of the crime.
The crime of indecent assault is one of the included offenses in the crime of carnal knowledge or statutory rape under G.S 1923, § 10125. See State v. McLeavey, 157 Minn. 408, 196 N.W. 645. "The rule admitting evidence of the complaint is based on the well known fact that when an outrage has been committed on a woman, the instincts of her nature prompt her to make her wrongs...
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