State v. Jensen

• Decision Date: 20 January 1922
• Docket Number: No. 22372.,22372.
• Parties: STATE v. JENSEN.
• Court: Minnesota Supreme Court

151 Minn. 174

186 N.W. 581

STATE

v.JENSEN.

No. 22372.

Supreme Court of Minnesota.

Jan. 20, 1922.

Appeal from District Court, Blue Earth County; W. L. Comstock, Judge.

Fred Jensen was convicted of carnal knowledge of a girl under the age of 18, and from a denial of a new trial, he appeals. Reversed, and new trial granted.

Syllabus by the Court

The rule that, to lay a foundation for the impeachment of an adverse witness by showing contradictory statements out of court, the attention of the witness must be directed to the time and place of such statements, is not to be given an unduly technical application. It was too strictly applied under the circumstances set out in the opinion.

Much latitude in the cross-examination of the prosecutrix should be allowed in the trial of a man charged with rape.

The rebuke of defendant's counsel for asking a witness for the state a seemingly impertinent question was undly severe and prejudicial to the defendant.

A party calling a witness, when disappointed by his testimony, may not cross-examine him in an attempt to discredit him without a showing that the witness had previously stated he would testify to facts contrary to those to which he testified when called. Ivan Bowen and S. B. Wilson, both of Mankato, for appellant.

C. L. Hilton, Atty. Gen., James E. Markham, Asst. Atty. Gen., and Chas. E. Phillips, Co. Atty., of Mankato, for the State.

LEES, C.

Defendant was indicted for the crime of having carnal knowledge of a girl under the age of 18 years. The same girl was prosecutrix in State v. Morehart, 183 N. W. 960, and State v. Swan, 186 N. W. 581. Defendant was convicted, and appeals from an order denying his motion for a new trial, and, separately, from the judgment of conviction. There are 59 assignments of error. We discuss only those upon which appellant principally relies.

[1] 1. The prosecutrix testified that she made defendant's acquaintance when she visited Mankato for a day or two early in September, 1920; that she returned to Mankato on or about Thursday, September 23d, immediately took a room on the third floor of a building referred to as the Nash Garage, and on the following Monday obtained employment in a restaurant. She further testified that during the evening of Saturday, September 25th, she met the defendant on the street and went with him to her room, where the offense was committed, and where he spent the night with her. The defendant denied the charge. A young man named Clifford Lang had been tried at the same term of court on a similar charge made by the same girl. Attached to an affidavit of defendant's attorney used on the motion for a new trial, but not made part of the settled case, is a purported copy of the court reporter's minutes in the Lang Case. According to this the prosecutrix testified that, while rooming over the Nash Garage, she went with Lang on a Saturday night to another building and spent part of the night with him there, and fixed the date as the night of October 1st. The proprietors of the rooming house testified that the girl came there on Friday, September 30th, and remained a week. The proprietor of the restaurant where she worked testified that he employed her for five days during the first week of October. On her cross-examination the girl was asked the following questions (referring to the date of the offense charged):

‘Q. Were you with any young man on that night?

‘Q. Now, the time that you claim that you were with Jensen in the Nash Garage, was it before or after you claim that you were with Clifford Lang?

‘Q. Did you see Clifford Lang on or about the 1st day of October?’

Objections to these questions were sustained. Defendant's counsel stated that he proposed to bring out by cross-examination that on the date the girl swore she stayed with defendant she had already sworn in the other case she stayed with Lang. An objection that this would not be proper cross-examination was sustained. Later defendant offered to prove by the court reporter that in the Lang Case the girl testified she was with Lang on the night of October 1, 1920. This was objected to, and the objection sustained. One of the important questions was whether the girl told the truth when she testified that defendant spent Saturday night, September 25th, with her in her room over the Nash Garage. She may have been mistaken as to the date of her arrival in Mankato and as to the date when she engaged her room. It may be that she came on the fifth instead of the fourth Thursday in September. If she lived over the Nash Garage but one week, beginning September 30th, and if she spent all or a portion of the night of October 1st with Lang in another building that circumstance would tend to refute her testimony respecting the vital issue in the case. We have not overlooked the state's contention that, to lay a foundation for impeachment by showing contradictory statements, the witness' attention should be directed to the nature of such statements, and the time when and place where they were made. The necessity of thus laying a foundation was referred to in State v. Hoyt, 13 Minn. 132 (Gil. 125), and Heydman v. Red Wing Brick Co., 112 Minn. 158, 127 N. W. 561, but an unduly technical application of the rule was disapproved in Johnson v. Young, 127 Minn. 462, 149 N. W. 940. In our opinion the defendant should have been permitted to proceed with the cross-examination far enough to lay a foundation for the impeachment of the prosecutrix.

[2] There is another reason why the questions should have been allowed. The rule is that a man charged with an offense of this nature is entitled to much latitude in the cross-examination of the prosecutrix. State v. Trocke, 127 Minn. 485, 149 N. W. 944;State v. Sandquist, 146 Minn. 322, 178 N. W. 883;State v. Jouppis, 147 Minn. 87, 179 N. W. 678. The questions, if answered, might have elicited facts tending to disprove the statements of the prosecutrix in her examination in chief. This would not be impeaching evidence, and required no foundation to be laid for its introduction. It would not show contrary statements, but acts demonstrating that her testimony as to the time, place, and circumstances of the alleged offense was untrue. State v. Connelly, 57 Minn. 482, 59 N. W. 479. It follows that the cross-examination was proper, even though it be conceded that the questions were not correctly framed to lay a foundation for impeachment.

[3] 2. The girl's father was called as a witness, and testified that she was 17 on February 1, 1921. On his cross-examination he was asked if he was her father, and answered that he was. This question followed: ‘Q. You are sure of that, now?’ There was an objection on the ground that the question was not a proper one. The court said:

‘Not only improper, but it is reprehensible. That would be very dangerous for counsel if I were a witness being examined in that manner. Exception may be given to counsel to the statement made by the court.’

Defendant's counsel then stated that he was seeking to show that the witness had theretofore testified that he was supposed to be the girl's father, and his testimony was such as to cast doubt upon his belief as to that, but the objection was sustained. It is urged that the remark of the court was prejudicial to defendant. In asking the question, counsel evidently had in mind the testimony given by the witness in another case. It does not appear that an insult to the witness was intended. The rebuke administered to counsel was unduly...