State v. Garden
| Decision Date | 13 December 1963 |
| Docket Number | No. 38590,38590 |
| Citation | 267 Minn. 97,125 N.W.2d 591 |
| Parties | STATE of Minnesota, Respondent, v. Frank GARDEN, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Where provisions of Minn.St. 593.13 and 628.42, relating to selection and drawing of names for grand jury, are substantially complied with by district court and board of county commissioners; and where failure to adhere strictly thereto was not prejudicial to defendant indicted for murder in first degree, Held court did not err in denying his motion to dismiss indictment.
2. In prosecution for murder where, over objection of defendant, view of locus is ordered pursuant to § 546.12; where neither judge nor court reporter is present at such view; and where sheriff placed in charge of jury while taking view had been vital witness for state at trial, Held procedure described constituted denial to defendant of his right to due process and requires reversal of judgment of conviction and granting of new trial.
3. In criminal proceeding sequestration of witnesses ordinarily rests in sound discretion of trial court, and where there is no showing that failure to require it was prejudicial to defendant, such failure would not constitute reversible error. However, where evidence is in sharp conflict and some vital issue such as guilt or innocence of defendant is at stake, motion for sequestration should be granted as matter of course.
4. Where state called prosecuting attorney to testify as to measurements he had made as basis for diagrams of interior of house in which murder was claimed to have been committed, Held court erred in denying defendant's counsel full opportunity to cross-examine such witness in effort to show personal interest or bias; and in making comment in presence of jury as to official interest of such witness.
5. In criminal proceedings it is proper to submit in evidence physical objects connected with crime, and here certain objects submitted in evidence, consisting of diagrams, photographs, and other items, found at scene of alleged murder and in house of defendant, were properly received as material to issue relating to defendant's guilt or innocence.
6. Under § 611.033, relating to written statement taken from an accused, which requires that copy of such writing be delivered to him at time it is taken and signed by him, there is no provision that copy shall have signature of accused thereon, and original is admissible in evidence where it appears that accused admits signing it, acknowledges thereon receipt of the copy, and concedes truth and correctness of statements therein.
7. Where sheriff's testimony covers verbatim oral admission of guilt made to him by defendant after arrest; where such testimony discloses that admission was not made by defendant until after he had been in custody approximately 17 days without formal accusation, without indictment, without counsel, and without having been accorded preliminary hearing provided for under § 629.14; and where defendant emphatically denied making such admission, Held in new trial ordered herein rules of United States Supreme Court governing admissibility of confessions made under like circumstances be strictly adhered to.
8. Defendant's additional assignments of error examined and held not to be of such materiality or relevance as to require detailed discussion here or to constitute grounds for reversal.
Whitney E. Tarutis, Bemidji, for appellant.
Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, James A. Wilson, County Atty., Park Rapids, for respondent.
Defendant was convicted of murder in the first degree by a district court jury in Hubbard County. On this appeal he contends that the court erred (1) in denying a motion made at the arraignment to dismiss the indictment on the ground that 'there existed no group or list from which a panel of Grand Jurors could legally be selected' to return such indictment; (2) in the admission and exclusion of certain evidence as hereafter described; and (3) in permitting certain trial procedures as hereafter set forth. He also contends that the evidence is insufficient to support the verdict of guilty.
On November 11, 1960, 4 days after a dispute in a Cass Lake 3.2 tavern, in which Mrs. Dorothy Parmenter, one of the owners of the tavern, Oscar Johnson, the deceased, and defendant had participated, the body of Johnson was found buried near his rural home in Hubbard County A lead slug fired from a 12-gauge shotgun had caused his death. On November 9, 1960, defendant was arrested on suspicion of murder. Pursuant to an order of the District Court of Hubbard County directing that a grand jury be convened, one was selected on November 14, 1960, as hereafter described. On December 1, 1960, it returned an indictment against defendant for the first-degree murder of Oscar Johnson, and on December 2 he was presented for arraignment thereon. This was his first appearance in any proceedings and, upon a showing of indigence, the court appointed counsel for him. The arraignment was then continued to December 5, and defendant's bond was fixed at $50,000. On December 5 defendant's counsel moved to dismiss the indictment on the ground above described. The arraignment was continued until December 6, and at that time the court stated:
'* * * (T)he Court feels that the present motion cannot be decided unless evidence is taken * * *.
'Further, the Court feels * * * that the Court itself should * * * examine the witnesses, and then that either side may ask such additional questions as you may deem necessary * * *.'
The testimony of witnesses called pursuant to the foregoing may be summarized as follows: Dell Leaman, auditor of Hubbard County, who also served as clerk of the board of county commissioners, 1 testified that at the meeting of the county commissioners in January 1960 each of the five commissioners had selected from the qualified voters of Hubbard County a number of prospective grand jurors for the year 1960, totaling 86 in all, which lists they had then delivered to her; that in accordance with custom she had then placed such lists in a filing cabinet in her office; 2 that on November 14, when she received the order calling for a grand jury, she had selected from such lists 72 names of prospective grand jurors. This latter list she had typewritten and, after attesting to its official character, had delivered to the clerk of the district court. However, the signature of the chairman of the county board was not placed thereon. 3 The witness testified that there had been no meeting of the county board on November 14 and that there were no minutes of such board to show that as a unit it had determined that the five separate lists of names submitted to her after the January meeting constituted the official grand jury list.
Temple Hinds, chairman of the county board, admitted that, on the day that the list of 72 names had been prepared by the county auditor and delivered to the clerk of the district court, there had been no meeting of the board and that he had not signed such list.
The court questioned him as follows:
'Q Are you now prepared to say that this is a correct list of the names of the persons properly qualified selected from the qualified voters of said county by the said County Board at its annual meeting held on the 5th day of January, 1960 to serve as grand jurors in the District Court, Ninth Judicial District in and for the County of Hubbard * * * and that said list does not contain the names of any persons drawn for service in a preceding annual list?
'A I am; yes, sir.
'Q And do you so say and swear?
'A That is right.
'Q (on cross-examination) And you and your board never collectively, together, agreed upon that list as a grand jury list?
'A We agreed upon that list, yes, upon the 1st day of January when we wrote these names in the book.
'Q Do you have any record of that, any resolutions?
'A No * * *.
'Q Minutes of that?
'A No minutes, but our handwriting there and those names are all in our handwriting.'
Mr. E. W. Andrews, clerk of the District Court of Hubbard County, testified as follows:
'Q (by the court) And what did you do in preparation for the drawing of the grand jury?
'A After receiving this list from the Auditor, I typed up the 72 names on the prescribed sheets or list and then I contacted the sheriff and * * * a justice of the peace and shortly after lunch * * * we drew the 23 names which I then typed and delivered to the sheriff, sometime during the afternoon * * *.'4
It is not disputed that the 23 names selected by the clerk from this list constituted the grand jury which returned the indictment against defendant. Following consideration of the foregoing evidence, the court denied defendant's motion to dismiss the indictment.
Trial commenced on January 30, 1961. Defendant was represented by Mr. W. E. Tarutis as counsel, and evidence was received as follows: Mrs. Parmenter, one of the owners of the 3.2 tavern where the quarrel occurred, testified that at about 3 p.m. on November 7, 1960, someone had told her that defendant had picked up, from the bar, some small change belonging to Oscar Johnson, who had left the tavern for a few minutes; that she had then accused defendant of taking it and had searched him but had failed to find the money on his person; that he then stated that he would 'get even' with her and Johnson--that he could 'hide bodies where they never could be found'; that Johnson had then said that he, defendant, had threatened to shoot Johnson for a long time and asked him when he was going to do it; and that defendant had then replied, 'It might be sooner than you think.' Mrs. Parmenter then ordered defendant to leave the tavern.
Mr. Peter Haave testified that he had seen defendant pick up a dime from the bar, but had heard no conversation between Johnson and defendant; that defendant had returned later looking for a wrench and ...
To continue reading
Request your trial
-
State v. Mastrian
...minor irregularities are not grounds for quashing the indictment or reversing a conviction procured pursuant thereto. State v. Garden, 267 Minn. 97, 125 N.W.2d 591. While it may be, as defendant argues, that a 5-month delay in submission of a new master list and a selection of a grand jury ......
-
State v. Hanson
...407, 9 L.Ed.2d 441.6 See, State v. Doust, 285 Minn. 336, 173 N.W.2d 337; State v. Steeves, 279 Minn. 298, 157 N.W.2d 67.7 State v. Garden, 267 Minn. 97, 125 N.W.2d 591.8 See, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d ......
-
State v. Zornes, A12–0463.
...We have held that the ability to sequester witnesses “rests in the sound discretion of the trial court.” State v. Garden, 267 Minn. 97, 112, 125 N.W.2d 591, 601 (1963). The sequestration issue raised by Zornes is a question of constitutional law and we review questions of constitutional law......
-
State v. Ellis
...Their testimony at the trial discloses no substantial variation from or inconsistency with their previous testimony. In State v. Garden, 267 Minn. 97, 125 N.W.2d 591, we discussed sequestration of witnesses and adhered to the view that where fact issues are vital, sequestration should be gr......