State v. Grear

• Decision Date: 10 June 1882
• Parties: STATE OF MINNESOTA v GREAR.
• Court: Minnesota Supreme Court

29 Minn. 221

13 N.W. 140

STATE OF MINNESOTAvGREAR.

Supreme Court of Minnesota.

Filed June 10, 1882.

Appeal from district court, fourth judicial district, county of Hennepin, from an order denying defendant's motion to set aside verdict.

A. N. Merrick, for appellant.

W. J. Hahn, Atty. Gen., for the State.

BERRY, J.

1. Where our statute (section 103, c. 73, Gen. St. 1878) declares that a confession of a defendant is not sufficient to warrant his conviction without evidence that the offence charged has been committed, it does not mean, as the prisoner's counsel seems to have supposed, that the confession is not sufficient without evidence that the defendant on trial has committed the offence. Evidence that the offence charged has been committed by some person is all that is required. State v. Laliyer, 4 Minn 368, (Gil. 277.) It is not necessary that the evidence mentioned should be introduced before the confession is received. Here, as in general, the order of testimony rests in the discretion of the court. The statute simply provides that the confession shall not be sufficient without the other evidence, and not that the confession shall not be received until after such other evidence has been adduced. The indictment charges that the defendant, being armed with a dangerous weapon, to–wit, a loaded pistol, assaulted Nellie Grear, with intent to do her great bodily harm. Now, although the evidence, outside of defendant's confession, that the offence charged had been committed would not appear from the paper book to have been presented in the most workmanlike manner, there certainly was evidence showing that the woman mentioned had been shot in the breast by somebody. There was nothing to raise any suspicion that she had shot herself, nor that she had been shot by accident. There is no evidence of the possession of a pistol by anybody in the house (where the shooting took place) except the prisoner, and on demand he gives it up, and the circumstances in which he gives it up, and his conduct independent of his confession, all tend to show that he was the person who fired the shot charged. There was, therefore, outside of his confession, evidence not only that the offence charged had been committed, but that the defendant committed it.

2. The proof of venue was rather loosely made, but certainly there was evidence going to show that the offence was committed in Hennepin county. Dr. Saulsbury, the surgeon who, immediately after the woman was shot, was called to attend her professionally at the boarding–house where the evidence shows that the shooting took place, testifies that “the boarding–house where I found her was here in Minneapolis.” When it was considered, as the bill of exceptions shows, that the trial at which this witness was testifying was then taking place in the city of Minneapolis, in Hennepin county, there can be no doubt that the venue was sufficiently proved by this witness, to say nothing of others. How little merit there is in both of these points which we have considered, viz., that as to proof of the corpus delicti and that as to proof of venue, will be still further apparent when it is observed that the principal if not the only defence attempted on the trial, viz., the irresponsible drunkenness of the defendant at the time of the shooting, necessarily proceeded upon the basis that he shot the woman, and in Hennepiu county.

3. The defendant requested the court to charge as follows: “If the jury are not satisfied beyond a reasonable doubt that the defendant is guilty of the intent charged in the indictment, but do find him guilty of having committed an assault, they may, under the indictment, find the defendant guilty of an assault only.” With reference to this request the court said: “Although this is a case of a kind where, under some circumstances, a person charged with an offence of this kind might be guilty of an assault, and not be guilty of an assault with the intent charged, I do not think there is any evidence in this case which will warrant you in so finding. The only evidence of an assault in this case is evidence which tends to prove an assault with a pistol for the purpose of doing great bodily harm, or it does not tend to prove anything; and if the defence of drunkenness is made out, so as to render the defendant irresponsible for his acts, it would cover a common assault as well as the other; so I think I shall refuse that request.” Upon the subject of intoxication as a defence to a criminal charge, the court had before repeatedly instructed the jury to the...