State v. Gowdy, 37997

• Decision Date: 02 March 1962
• Docket Number: No. 37997,37997
• Citation: 262 Minn. 70,113 N.W.2d 578
• Parties: STATE of Minnesota, Respondent, v. Gerald E. GOWDY, Appellant.
• Court: Minnesota Supreme Court

Page 578

113 N.W.2d 578

262 Minn. 70

STATE of Minnesota, Respondent, v. Gerald E. GOWDY, Appellant.

No. 37997.

Supreme Court of Minnesota.

March 2, 1962.

Syllabus by the Court

1. In a prosecution for murder in the first degree, premeditation to effect the death of a person may be inferred from all the circumstances surrounding the homicide. It is not necessary that defendant had a premeditated design to effect the death of a specific person. It is enough that he had a premeditated design to effect the death of anyone who obstructed his purpose of committing a crime or of escaping when apprehended.

2. Where defendant and another are apprehended in the commission of a crime and the other gives up but defendant continues his effort to escape, and in the act of so doing kills an officer aiding in his capture, the court is justified in permitting the person who gave up to plead guilty to murder in the third degree and in still finding defendant, who alone committed the homicide, guilty of murder in the first degree.

3. The evidence in this case justifies a finding that defendant knew what he was doing when he shot and killed a police officer.

4. Other alleged errors examined and held they did not deprive defendant of a fair trial.

Gerald E. Gowdy, pro se, for appellant.

George Scott, County Atty., Theodore Rix, Asst. County Atty., Minneapolis, Walter F. Mondale, Atty. Gen., for respondent.

KNUTSON, Chief Justice.

Defendant, Gerald E. Gowdy, was indicted by the grand jury for the crime of murder in the first degree. He was arraigned on June 3, 1959. A plea of not guilty was entered. The court then ascertained that he was without counsel and unable to procure one in his own behalf. The public defender was appointed to represent him. The case was called for trial on June 9 1959, so the public defender had ample opportunity to confer with defendant. At that time defendant signed a written waiver of a jury trial, and the case proceeded to trial before the court without a jury. The court found defendant guilty of murder in the first degree. He was sentenced to the State Penitentiary for life. The appeal here is from the judgment after denial of defendant's motion for a new trial.

The material facts are not seriously in dispute. Defendant and one John Alfred Brewer came to Minnesota for the express purpose of committing a robbery. The first night here they spent on the Iron Range. They were both armed, defendant with a .38-caliber revolver and Brewer with an automatic revolver, both of which defendant had stolen prior thereto. On May 11, 1959, they drove to Duluth, where they purchased some ammunition for Brewer's automatic pistol. They then drove to Minneapolis for the purpose of committing a robbery there. They first went to a Red Owl Store at 2124 East Lake Street in Minneapolis. They left their guns in the glove compartment of their automobile and entered the store unarmed to purchase some food and to look the store over to try to find the location of the cash register. Some time thereafter, after eating in the car, they took the guns from the glove compartment. Defendant put his in his belt and Brewer put his in his pocket, and they again entered the store. It was then about 7:30 p.m. They approached a sales girl by the name of Gail Patrick and asked her to call the manager. When the manager, Ralph H. Scheffler, appeared, defendant told him: 'There's a gun in your back; this is a holdup.' They proceeded to the office with Scheffler. Miss Patrick entered the office, and defendant had his gun out. He motioned to her to stay in there but then allowed her to return to the service counter to wait on customers. He demanded that Scheffler open the safe, and, at the request of Scheffler, Miss Patrick proceeded to procure a key for the safe from Charles E. Sather, an employee in the meat department. When she did so, she gave a prearranged signal to the meat department that a holdup was in progress, and Sather, before returning with the key, called the police department. Thereafter the safe was opened and $500 in bills given to defendant. Defendant testified that he told Scheffler, Sather, and Miss Patrick to lie down on the floor so that on one would get hurt. At about this time the police arrived at the store. Apparently Brewer observed the entrance of the police and said to defendant, 'We better get out of here.' Both men left the office and went by the service counter. Up to this point there is little dispute in the testimony. Defendant contends that he remembers nothing from the time he heard Brewer say, 'Jerry, the cops are here,' until he came to in the hospital.

The ensuing events were related by testimony of several police officers and a witness who was injured by a gunshot would in the affray that followed. Police detective Wayne K. Leonard, having heard the radio call that a holdup was in progress, went to the Red Owl Store. As he ran into the store through the service door and Patrolman Witt ran in through the front door, Leonard saw defendant and Brewer running toward him. He grabbed defendant, and Witt grabbed Brewer. After telling defendant that he was under arrest, Leonard told him to drop his gun. Defendant said, 'You will have to kill me,' and did not comply. Officer Witt struck defendant on the wrist with his pistol in an effort to dislodge defendant's gun but failed to do so. Leonard then struck him on the back of the head with his pistol. Defendant thereupon turned and fired his pistol at Leonard, and Leonard fired back. It is not clear which fired first since the shots apparently were almost simultaneous. Defendant ran toward the door and apparently fell and got up and ran again. Leonard ran after him and, after trying the wrong door, made his exit through a door onto the sidewalk, and as he came out to the sidewalk he saw Sergeant William F. Herkal, Jr., another police officer who had arrived at the scene. Herkal was holding his chest and coughing or groaning, and defendant at that time was fallign on his face. Leonard later disarmed defendant.

Patrolman Durwood L. Witt arrived at the store at about the same time as Leonard, and he ran in and grabbed Brewer. Upon being told to put up his hands, Brewer did not do so immediately but kept them in his pockets. After the first shots mentioned above, Brewer complied with Witt's orders to get down on the floor and permitted himself to be disarmed. He had a pistol in his pocket with the safety off but offered no further resistance.

R. Walter Zabel, a pedestrian bystander, testified that he was outside the store and that he saw defendant run out of the door, swing his gun at Sergeant Herkal and shoot and then swing his gun at and shoot Zabel. Zabel suffered a minor gunshot wound.

Patrolman Jacob A. Lindgren approached the store with other officers in a squad car in time to see defendant emerge from the store and shoot at Sergeant Herkal. Lindgren eventually felled defendant by firing a riot gun at him.

An autopsy conducted on the body of Herkal by the county coroner and a pathologist on the staff of Minneapolis General Hospital established that the cause of death was loss of blood into the chest cavity from a tear in the aorta from a bullet which was found in the body. Ballistics establishd that the bullet came from the gun carried by defendant. Herkal was shot twice, one bullet passing through his body.

There can be no doubt but that defendant shot and killed Herkal. Defendant does not dispute this fact. His contentions on this appeal are (1) that the evidence is insufficient to sustain a conviction of murder in the first degree, and (2) that he was deprived of substantial constitutional rights before or during the trial, which will be discussed hereinafter.

It is defendant's first contention that murder in the first degree does not lie because there was no premeditation but that the evidence sustains only a conviction of murder in the third degree. He bases this on the fact that Minn.St. 619.07, ¹ defining murder in the first degree, requires evidence of a premeditated design to effect death and that, since defendant neither knew nor disliked the deceased, he had no intention of killing anyone and, therefore, the requirements of the statute are not fulfilled. He admits that the evidence would sustain a conviction of murder in the third degree as defined in § 619.10. ²

1. We have held that '(p)remeditation, being a process of the mind, and a design, likewise being a product of the mind, are wholly subjective and hence incapable of direct proof. They must be inferred from objective manifestations.' ³ Premeditation may be inferred from all the circumstances surrounding the homicide. ⁴ Nor is it necessary that the design to effect death exist for any specific length of time. ⁵ Here the evidence establishes beyond any doubt that defendant and Brewer entered the store armed with loaded revolvers, ready to shoot, if necessary, anyone who obstructed their purpose of robbing the store; that in an attempt to escape capture defendant shot at several people; and that at arm's length he discharged his loaded revolver into a vital area of the body of Sergeant Herkal, causing his immediate death. From these facts an inference is clearly permissible that defendant had a premeditated design to shoot and kill anyone who got in his way. It is not necessary that he have a premeditated design to effect the death of a specific person. It is enough that he had a premeditated design to kill, if necessary, anyone who interfered with his plan to rob the store or to escape capture.

2. Defendant next contends that, inasmuch as Brewer was permitted to plead guilty to the crime of murder in the third degree, defendant could not be charged or convicted of a greater degree of the same offense for the reason that they were both principals in the commission of the same crime. What defendant fails to recognize is that he is not being prosecuted here for the...