State v. Gummer

• Citation: 200 N.W. 20,51 N.D. 445
• Parties: STATE v. GUMMER.
• Decision Date: 03 September 1924
• Court: United States State Supreme Court of North Dakota

51 N.D. 445

200 N.W. 20

STATE

v.GUMMER.

Supreme Court of North Dakota.

Feb. 16, 1924.

Rehearing Denied Sept. 3, 1924.

Syllabus by the Court.

Upon a prosecution for the crime of murder, where the deceased is shown to have been first raped and then murdered, and where the evidence to connect the defendant with the crime, as its perpetrator, is circumstantial, the evidence is reviewed, and it is held sufficient to support the verdict of guilty and to exclude every reasonable hypothesis of innocence.

For reasons stated in the opinion, it is held that the trial court did not err in receiving certain evidence offered by the state tending to establish the close and intimate friendship and association between defendant and his roommate Brown; that during the night and in the hotel in which the crime was committed the defendant had a conversation with Brown; and that Brown thereafter had an opportunity to write and did write a fictitious name upon the hotel register.

Where the defendant sought to show upon the cross-examination of said Brown that he did not write the fictitious name upon the hotel register, it is held, for reasons stated in the opinion, that the trial court did not err in restricting the cross-examination to the subject-matter of the direct examination.

For reasons stated in the opinion, it is held that there was no error in the admission of evidence as to the whereabouts and the appearance of a third party at 6:30 o'clock of the morning when the crime was committed; such third party being a roommate and intimate associate of the accused.

A witness may be impeached by proof of inconsistent statements made at a prior time when such inconsistent statements tend to show his interest.

For reasons stated in the opinion, it is held that there was no error committed in limiting the cross-examination of the state's attorney, who had testified concerning certain admissions made by the defendant.

In a criminal case the prosecution may not introduce evidence tending to prove that the defendant was morally deficient, that he possessed a criminal disposition generally, or that he was particularly disposed to commit the offense with which he is charged, and, to this end, it may not introduce evidence of the defendant's participation in other acts which are criminal or which involve moral turpitude; but it may, nevertheless, prove all the circumstances attending the commission of the crime in question, and if, in so doing, it is necessary to show an immoral course of conduct pursued by the defendant, the facts going to establish that conduct are admissible, regardless of their prejudicial character.

Where, among the circumstances attending the commission of a crime, it appears that a certain relationship existed between the accused and the victim of the crime (that of hotel clerk and guest), and where the prior acts of the accused towards others in that relationship, as shown by his admissions, have been such as to show a general disregard of his obligations in the relationship and to evidence a lascivious course of conduct towards all attractive females who came within that relationship, it is held that testimony and admissions concerning the recent attitude of the accused towards such third persons similarly situated are relevant to establish the circumstances attending the crime in question.

Where the authorship of a certain writing is in issue in a criminal case, the party attempting to prove it to be the handwriting of a certain individual may introduce specimens of the handwriting of such person, not otherwise relevant or admissible, for purposes of comparison, where, in the judgment of the trial court, the admission of such specimens will have little, if any, tendency to complicate the issues.

Certain rulings of the trial court in the admission of evidence examined, and, for reasons stated in the opinion, held to be proper.

Appeal from District Court, Barnes County; Chas. M. Cooley, Judge.

William Gummer was convicted of murder in the first degree, and he appeals. Affirmed.

Nuessle, J., dissenting.

The defendant was convicted of murder in the first degree. He has appealed from the judgment of conviction and an order denying a new trial. The record is voluminous. The facts necessary to be stated are as follows: In June, 1921, Marie Wick was a strong, healthy, good-looking, unmarried, and virtuous girl of 18 years, living at Grygla, Minn., a small inland town about 100 miles north of Fargo, N. D; she was steady and industrious; she possessed an ordinary education, supplemented by a business course had in a college at Warren, a small town not far distant from Grygla, Minn. She had never been in any town larger than Warren, Minn. Her parents were farmers living near Grygla. For some 8 months prior to June 4, 1921, she had been working for a cooperative company at Grygla. She desired and intended to visit her aunt at Pettibone, N. D., another small town some 150 miles west of Fargo, on a branch of the Northern Pacific Railway. Thus, for her visit, she with her father went from Grygla to Thief River Falls on June 5, 1921. She had then $20 in currency and a cashier's check for $20. The next morning she proceeded alone on the train (Soo Line) to Warren; thence she proceeded, again alone, on another train (Great Northern Railway) to Crookston; thence on a train (Great Northern Railway) from Crookston to Fargo, riding with some women and children whom she had met at Crookston. She neither talked nor paid any attention to other passengers on this train. Previously she had written to one Rasmussen, a boy whom she had known since her childhood days at home, requesting him to meet her at Fargo, because never had she been in a town as large as Fargo. At Moorhead, a town across the river from Fargo, Rasmussen met her and rode with her on the train to Fargo. Together they walked from the Great Northern depot in Fargo to the Northern Pacific depot to ascertain when the Northern Pacific train left the next morning for the trip to Pettibone. The parties with whom she rode on the train to Fargo talked about going to the Prescott Hotel in Fargo. In fact they did stop at this hotel. Mrs. Lawrence was the proprietress of this hotel. So from the Northern Pacific depot they went to the Prescott Hotel. There they arrived about 10:15 or 10:20 p. m. There she was registered by the landlady, Mrs. Lawrence, assigned room 30, given a key to the room, and dated on the call sheet for a call at 6:30 a. m. Defendant, Gummer, was the night clerk at this hotel. He had shown to their rooms the parties with whom Miss Wick had ridden on the train from Crookston to Fargo. As he came downstairs the landlady requested him to conduct Miss Wick to her room. This he did. She remained in her room for a few minutes, came downstairs, left her key at the desk, and with Rasmussen went to an ice cream parlor. In a short time she returned. Rasmussen left her and went to Moorhead. She procured her key at the desk, requested the landlady to change her call to 6 a. m., and proceeded to her room for the second time at about 11 p. m. Mrs. Lawrence and her son Fred retired about 11:40 p. m. All of the guests at the hotel had retired at or about midnight, with the exceptions hereinafter noted. One Hagen arrived in Fargo on the Northern Pacific train, No. 4, due there at 12:55 a. m. He went to another hotel, found it filled, then came to the Prescott; defendant assigned to him room 31, adjoining the room of Miss Wick. One Smith and wife came to this hotel after Hagen, and before 2 a. m. One McKenzie registered as a guest about 3 a. m. One Van Vorst, a guest, left at 11 p. m., and did not return until about 5 a. m. Another guest, Myers, left the hotel about 11:30 p. m. and returned about 2 a. m. Pursuant to defendant's statements a man, having the appearance of a laboring man, came to the hotel about 2 a. m., registered as James Farrell, and was assigned room 40. About midnight Andy Brown, defendant's roommate, called at the hotel and visited with defendant. Pursuant to defendant's testimony at 6 a. m. he called her room by phone; no response was given; again he called two or three times; then he rapped on the door; then he swept out the office; then he called on the phone again; then he got the keys, unlocked the door, walked in a few steps, backed out, went down into the lobby, stayed there a few minutes, and then called Fred Lawrence, the son of the landlady. This was about 6:45 a. m. Lawrence went to the room; the door was locked; he looked over the transom; he directed a maid to open the door; a call was sent for the police and a doctor. The first officer to arrive was a police officer in Fargo. At the hotel he found Lawrence and defendant standing behind the desk. Defendant stated to the officer that a girl in room 30 was covered with blood, and he thought it was suicide. Defendant then took the officer to room 30 and unlocked the door with a key having a brass slab attached to it. There they found Marie Wick in the room on the bed, stretched out, tied, gagged and bound, raped and murdered. Her arms were tied to the bedpost above her head; pillowslips had been removed from the pillows; she had been gagged by inserting the major portion of a pillowslip in her mouth, slipping the balance over her face and bandaging it. In tying the girl strips of a sheet had been used, torn from a sheet on the west side of the bed. The portion of the pillow slip in her mouth was not bloody; the portion outside was soaked in blood. The bandages did not cover her eyes; they were wide open. There were four distinct finger marks on the left side of her throat and one on the right side, black and blue marks which had not broken the skin. Her head had been badly battered; at least four cuts appeared outside the hair line; and on top of the head she had been struck seven or eight times by some heavy instrumentality; it required about 167 to 170 stitches to close...