State v. Hopfe

• Decision Date: 03 May 1957
• Docket Number: No. 36907,36907
• Citation: 82 N.W.2d 681,249 Minn. 464
• Parties: STATE of Minnesota, Respondent, v. W. E. HOPFE, Appellant.
• Court: Minnesota Supreme Court

Page 681

82 N.W.2d 681

249 Minn. 464

STATE of Minnesota, Respondent, v. W. E. HOPFE, Appellant.

No. 36907.

Supreme Court of Minnesota.

May 3, 1957.

Syllabus by the Court.

1. Where evidence is undisputed that witness counseled, encouraged, aided, and induced participant to engage in homosexual relations with defendant, which witness and participant jointly planned and for which they expected defendant to pay money to be shared equally by them, Held that under M.S.A. § 610.12, which defines principals in criminal offenses, such witness was an accomplice in offense for which defendant was convicted and that trial court erred in refusing to so instruct jury.

2. Towels used by accomplices and defendant in connection with offense for which defendant was convicted and mattress used in similar offense committed by principals shortly thereafter, upon which semen stains were found, Held sufficiently corroborative under § 634.04 of testimony of such accomplices as to use and identity of such exhibits and as to their location in defendant's office to support finding as to defendant's guilt.

3. In sex offenses trial court may, in its discretion, receive evidence of similar acts involving same parties to characterize conduct and disposition of defendant toward such parties, if such evidence does not create undue prejudice or confuse the issues, or if it does not unfairly surprise defendant. Reception in evidence of towels and mattress used by one of the accomplices and defendant in connection with a similar offense to that for which defendant was convicted, together with testimony of expert as to semen stains thereon, Held admissible in the discretion of the trial court.

4. Where cardboard carton, together with certain towels found therein, and a mattress were picked up by police in defendant's office in location described by accomplices; where defendant admitted that such carton and towels had been in his office on the date of the offense for which he was convicted; where he admitted that his laundry mark was on such towels and that they had been furnished by him for his office; where one of the accomplices identified mattress as being the same as the one used in connection with a similar offense with defendant, and where both accomplices described the towels as similar to those used on occasion of these offenses; and where there was nothing to show that such exhibits were not in same condition when found by police as they were on date of offenses described, or that there had been any material change therein between the date they were picked up by police and the date they were submitted in evidence, Held foundation for reception of such exhibits in evidence was sufficient.

Reversed and new trial granted.

Bang, Nierengarten & Hoversten, Austin, for appellant.

Miles Lord, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, John R. Murphy, Asst. Atty. Gen., Wallace C. Sieh, County Atty., Austin, for respondent.

THOMAS GALLAGHER, Justice.

Defendant appeals from a judgment entered January 23, 1956, convicting him of the crime of sodomy. The offense for which he was convicted was committed with one Robert on April 15, 1955. Robert was then of the age of 15 years.

On appeal it is defendant's contention that the trial court erred (1) in refusing to instruct the jury that as a matter of law one Terrence, aged 14 years, and a witness for the state, was an accomplice in the commission of the crime with which defendant was charged; (2) in refusing to instruct the jury that, if it found Terrence to be an accomplice, it must then find in defendant's favor because of the absence of evidence to corroborate the testimony of either Robert or Terrence as accomplices; (3) in receiving in evidence without sufficient foundation three towels claimed to have been used in connection with the offense charged; and (4) in receiving in evidence a mattress claimed to have been used May 4, 1955, in the commission of a similar offense.

Both Robert and Terrence testified that they had first met defendant at his office at about 9 p.m. on the evening of April 6, 1955; that they had gone there because one Leschefske had told them that defendant would pay money to those having homosexual relations with him and they desired to obtain money from him in exchange for submitting to him in such relationship; that together they had decided on doing this as a 'joint enterprise' in which both would share equally; that on this occasion they had mentioned Leschefske's name to defendant; that Terrence had then asked defendant if he would drive him to Mapleview where he lived; that defendant agreed to this and that during this ride he had given Terrence $2, from which Terrence had given Robert $1; that after their arrival at Mapleview, at defendant's request, Robert had left the car; that according to Terrence defendant had then driven him out to a spot some distance from Mapleview where he had placed his hands upon Terrence indecently; and that thereafter they had returned and met Robert.

Both boys testified that while together during the evening of April 15, 1955, Terrence had telephoned defendant as his home but that at first they could not reach him there; that shortly thereafter the same evening Robert had called defendant and reached him there, and had then arranged for defendant to meet them at his office that same evening; that their purpose in arranging this meeting was to obtain momey from defendant in exchange for having homesexual relations with him; that they met defendant at his office about 8:30 or 9 p.m. that night and that defendant then told them that he wished to be alone with Robert and that Terrence had left to wait at Henry's cafe nearby.

Robert testified that thereupon he and defendant had engaged in homesexual relations, the offense for which defendant was later convicted; that after commission of this act defendant had taken a towel from a cardboard carton in his storeroom adjoining his office and that he and defendant had used the towel which was then returned to the carton by defendant. He described the towel, the carton, and the location thereof in the adjoining storeroom in some detail. He further testified that thereafter defendant had given him $3 and had told him to tell Terrence to come up; that when Terrence had returned defendant had given him $3 also; and that thereafter they both had left. This latter testimony was corroborated by Terrence.

Both boys testified that during the evening of April 28, 1955, they had called upon defendant at his home to request that he again come to his office but that defendant had not answered his door on this occasion. They both testified that during the evening of May 4, 1955, they were driving around Austin with Leschefske; that at about 8:30 p.m. that night Terrence had left the car to go to defendant's office to obtain change for a $100 bill which Terrence had and which, it later developed, he had stolen. Terrence testified that, after he had called upon defendant at his office, he and defendant had again engaged in homosexual relations and that in connection therewith a mattress procured by defendant from the storeroom had been used; that after commission of this act defendant had taken some towels from the storeroom and that he and defendant had used them; that shortly thereafter Robert had knocked on the door and that he had let Robert in; that the then asked defendant if he would call up the bank and tell someone there to change the $100 bill for him; that defendant had agreed to do this and that thereupon he had left and Robert had remained; that when he arrived at the bank he had found it closed and he had returned to defendant's office; that after a while its door was opened and he was let in by Robert; that thereupon he had given the $100 bill to defendant and had told defendant that he would return the next day for the change therefrom; that a day or so later he had returned and defendant had given him such change.

Robert testified that when he arrived at defendant's office on this occasion he had observed that defendant was not wearing shoes, collar, coat, or necktie, and was in the act of tying a mattress in a roll; that after Terrence had left for the bank he and defendant had engaged in homesexual relations and that defendant had then given him and Robert each $3; that on this occasion also they had used towels from the cardboard carton in the storeroom.

The state submitted to both boys for examination a mattress and three towels with defendant's name stamped thereon, which the police had taken from the cardboard carton in defendant's storeroom at the time of his arrest on May 31, 1955. The boys identified the mattress as the one they had seen in defendant's office and testified that the three towels were similar to the ones kept in the carton and used by them and defendant on the occasions described. The cardboard carton was likewise submitted to them for examination and identified by them as the one in which the towels had been kept in defendant's storeroom.

Robert Nelson, detective in the Austin Police Department, testified that, after an interview with Robert and Terrence on May 17, 1955, with respect to the $100 bill, he had talked to defendant in the office of George Roope, Austin Chief of Police, on May 20, 1955; that on this occasion he had asked defendant if he knew Terrence and Robert and if he had cashed a $100 bill for them; that defendant had replied that he did not know them but had cashed a $100 bill for two boys; that when asked why he had cashed a $100 for boys he did not know, defendant had stated he would not answer any further questions until he had consulted his attorney; that on May 31, 1955, he went to defendant's office to arrest the defendant for the crime charged, and had then searched for and found the cardboard carton, towels, and mattress in the location in the storeroom in which the boys had told him they would be found; that...