State v. Guy

• Decision Date: 04 November 1960
• Docket Number: No. 37925,37925
• Citation: 105 N.W.2d 892,259 Minn. 67
• Parties: STATE of Minnesota, Respondent, v. Earl GUY, Appellant.
• Court: Minnesota Supreme Court

Page 892

105 N.W.2d 892

259 Minn. 67

STATE of Minnesota, Respondent, v. Earl GUY, Appellant.

No. 37925.

Supreme Court of Minnesota.

Nov. 4, 1960.

Rehearing Denied Dec. 7, 1960.

Syllabus by the Court.

1. Evidence to corroborate the testimony of an accomplice need not be sufficient to support a conviction if standing alone. It is enough if it is sufficiently weighty to restore confidence in the accomplice's testimony.

2. The state may impeach its own witness in case of genuine surprise. Whether there is a genuine surprise presents a preliminary question for determination by the trial court, which ordinarily will not be disturbed on appeal unless there is an abuse of discretion.

3. Where the evidence of participation by a witness in the commission of the crime is conclusive the court should instruct the jury that the witness is an accomplice. Care should be exercised, however, not to leave the implication that he is an accomplice of defendant.

4. Where a conspiracy is shown as an incident to determination of admissibility of evidence only, its existence presents a preliminary question for determination by the trial court.

Bradford & Kennedy, Charles W. Kennedy, Wadena, Keith D. Kennedy, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., George M. Scott, County Atty., Per M. Larson and Ronald I. Meshbesher, Asst. County Attys., Minneapolis, for respondent.

KNUTSON, Justice.

Defendant was convicted of forgery in the second degree. He appeals from an order denying a motion for a new trial and from the judgment.

On Friday, April 24, and Saturday, April 25, 1959, a large number of counterfeit payroll checks, purported to have been issued by Minneapolis-Honeywell Regulator Company, were passed in St. Paul and Minneapolis. At least 64 of such checks reached the hands of police in the two cities. The checks were a good replica of genuine Honeywell payroll checks.

The main thrust of this appeal is directed at the sufficiency of the evidence to corroborate the testimony of one Jack Archer, who had entered a plea of guilty to forgery and was an admitted participant in passing ten of such checks. He testified that at about 7 p.m. on April 24, 1959, he (Archer), one Zack LeMon, and defendant met at 2938 Cedar Avenue in south Minneapolis. There he saw defendant hand LeMon an envelope containing ten checks payable to G. H. White, each in the amount of $97.86. LeMon was also given a false driver's license made out to G. H. White. Archer and LeMon then took a bus to the vicinity of 1400 East Franklin Avenue in Minneapolis, where LeMon gave Archer one of the checks and the driver's license. Archer then went to a shoestore on Franklin Avenue, where he purchased a pair of shoes and cashed one of the checks, receiving in cash the amount thereof, less the amount of the purchase. He then returned to LeMon and was given another check, which he cashed in like manner in Meyers Department Store, using the driver's license as identification. The charge against defendant is based on the cashing of this check. Archer's photograph was taken at Meyers Department Store on a regiscope. Leaving the store, Archer rejoined LeMon, and they returned to 2938 Cedar Avenue together. Between 9 and 10 p.m. on the same day they went to Bob and Ray's Tavern on Cedar Avenue and Lake Street. There they met defendant, who inquired 'how did things go,' to which Archer replied that he had cashed two checks.

The following noon Archer and LeMon purchased a used Chevrolet automobile for $60 under the fictitious name of James Runyon. The car bore license number 3 E 4489. The two of them then drove around and cashed eight more of the checks, which defendant had given LeMon, in the same manner in which they had cashed the two checks the day before. At about 6 p.m. they returned to 2938 Cedar Avenue, where defendant was waiting for them. Defendant then counted out the money they had left and retained half of it, amounting to about $400. The other half was later divided between Archer and LeMon. While they were at 2938 Cedar Avenue, Dwight Anderson, age 11, and Carl Anderson, age 9, entered the room. LeMon told them to go outside. Archer returned the false driver's license to defendant.

Archer said that he then took the car they had purchased to his residence, where it remained until the following Wednesday, April 29. He gave the keys to defendant, who said that he would have the car picked up that evening. Archer never saw the car again. Archer then mentioned to defendant that his picture had been taken at Meyers Department Store, but defendant told him not to worry about it.

It is obvious that, if the foregoing testimony of Archer is sufficiently corroborated by admissible evidence to meet the requirements of our statute, the jury was fully justified in returning a verdict of guilty.

As corroboration, the state showed that a green Chevrolet car bearing license number 3E 4489 was picked up by the police in front of 2718 Garfield Avenue South, the home of one Arnold Lund, who was a friend of defendant. The state thereafter showed that Arnold Lund had cashed a Honeywell payroll check similar to those cashed by Archer at Meyers Department Store.

The state called as a witness one George Knight, an illiterate Negro, who testified that he was brought to Minneapolis from Omaha, Nebraska, by a man named Cary. He said that he was taken to a house in or around Minneapolis, the exact location of which he did not know, between 9:30 and 10 a.m. Knight waited in this house until about 11:30 a.m., when a man by the name of Sandberg arrived. At about 1:30 p.m., while Knight, Sandberg, and Cary were in the living room of the house, defendant arrived. Knight testified that after defendant spoke to Cary, Sandberg said: 'That is the man we had been waiting on.' Knight then testified that defendant and Sandberg walked to the kitchen of the house. He could not hear what they said while in the kitchen. Defendant and Sandberg came out of the kitchen in about 10 minutes, and Sandberg said: 'It is time for us to go now.' Thereafter, Knight, Cary, and Sandberg left the house and drove off in Sandberg's station wagon.

Near downtown Minneapolis the trio stopped at Kick's Liquor Store, where Knight was given a counterfeit Honeywell payroll check similar to the check which Archer had cashed at Meyers Department Store, except that it was payable to G. W. Jones in the amount of $76.68 and bore an endorsement on the back of the check. Knight could neither read nor write. Knight was also given a driver's license to use as identification. He entered the liquor store, bought a pint of whiskey, cashed the check, and returned to the car, giving Sandberg the proceeds of the check. They then made two additional stops at supermarkets and Knight cashed two additional checks, one at a Red Owl Store and one at a National Tea Store, in both of which photographs of him were taken on a regiscope, although he was not aware of it at the time.

Knight testified that he did not know that the checks were forgeries, since he could neither read nor write, but he became suspicious after cashing the third check, so he said something and gave the driver's license back to Sandberg. Thereafter they drove back to the house from which they had started, and a short time later Knight and Cary began the trip back to Omaha.

On April 30, 1959, Meyers Department Store received from its bank the check Archer had cashed there on April 24. The check was turned over to the police immediately. Archer thereupon was arrested and interrogated, and shortly thereafter, apparently as a result of such interrogation, police officers were dispatched to 2938 Cedar Avenue to arrest LeMon. When they arrived there, one of the police officers walked to the rear of the building and saw a man look out of the window of the house. Other officers entered the front hallway, where they found defendant at the head of a stairway on the second floor. They asked him for his name, and he replied, 'Earl Guy.' They asked him what he was doing in the building, and he said that he was looking for a man by the name of Johnson, who was supposed to be living on the first floor. When the detectives knocked at the door of the place where Johnson was supposed to be living they found Zack LeMon. Mrs. Anderson and her two sons, Dwight and Carl, were also there. Both LeMon and defendant were thereupon placed under arrest and taken to police headquarters.

Defendant contends (1) that the evidence is insufficient to corroborate the testimony of Archer; (2) that the court erred in admitting evidence relating to the cashing of checks by the witness Knight; (3) that the court erred in permitting the state to impeach its witness Dwight Anderson; and (4) that the court erred in its instructions to the jury and its refusal to give requested instructions that will be discussed hereinafter.

1. That Archer was an accomplice of whoever else took part in uttering the check cashed at Meyers Department Store can hardly be open to question. For this reason, under Minn.St. 634.04, ¹ a conviction cannot rest on his testimony alone. The rules respecting the sufficiency of corroborative evidence have been amply stated in prior decisions of this court. ² Such corroborative evidence need not be sufficient to support a conviction if standing alone. The rule requiring the corroboration has its roots in the common law. ³ Now made a rule of law by statute, corroboration is required because the testimony of an accomplice is considered to be inherently untrustworthy, largely for the reason that he may testify against the defendant in the hope of obtaining clemency for himself. ⁴ Thus, corroborative evidence is sufficient when it is weighty enough to restore confidence in the truth of the accomplice's testimony. ⁵

Applying these rules to the case at bar, it is apparent that the corroborative evidence, if properly admitted, is sufficient to meet the legal tests. No...