State v. Johnson

• Decision Date: 08 December 1887
• Citation: 35 N.W. 373,37 Minn. 493
• Parties: State of Minnesota v. Peter Johnson
• Court: Minnesota Supreme Court

35 N.W. 373

37 Minn. 493

State of Minnesota v. Peter Johnson

Supreme Court of Minnesota

December 8, 1887

A motion for reargument in this case was denied December 14 1887.

The defendant was tried, with two others, in the district court for Dakota county, before Crosby, J., on an indictment for murder in the first degree, and was found guilty of manslaughter in the first degree. He appeals from an order refusing a new trial.

Order affirmed.

H. L Williams, for defendant.

Moses E. Clapp, Attorney General, and Albert Schaller, for the State.

Gilfillan C. J. Mitchell, J., dissenting.

OPINION

Gilfillan, C. J.

The defendant was indicted with two others for murder in the first degree, and was convicted of manslaughter in the first degree. Several exceptions are taken to the indictment: First. It does not allege that the killing was done "with a premeditated design to effect the death" of the person killed, which words are used by the Criminal Code in defining the crime. Penal Code, § 152. It follows the form given in Gen. St. 1878, c. 108, § 2, which, instead of the foregoing words, uses the words "without the authority of law, and with malice aforethought." The definition of murder in the first degree in the Criminal Code is in substance the same as in Gen. St. 1878, c. 94, § 2. Chapter 108, prescribing forms for indictments, is not expressly repealed by the Criminal Code. It is still in force, except so far as inconsistent with the provisions of the latter. A form of indictment prescribed by that chapter for an offence defined in the same manner in both the General Statutes and Code, is not inconsistent with the latter; so that where the definition of the offence is the same, the form prescribed in chapter 108 may be used. Second. The indictment charges the act to have been done by the three persons collectively, instead of charging it to have been done by them severally. There is nothing in that exception. As charged, the act was that of each and all. Third. That the indictment does not conclude with the words "against the peace and dignity of the state of Minnesota," as required by the constitution. This is claimed because at the bottom of the indictment are the words: "Dated at Hastings, in the county of Dakota, this twenty-first day of January, A. D. 1887." These words are no part of the indictment; their presence adds nothing to it, their absence would take nothing from it; it is concluded before those words are reached. The exception is not well taken.

The evidence in the case was mainly circumstantial. The killing occurred at about 11 o'clock of a Saturday night. The evidence shows that Morrow, the person killed, had been drinking during the evening, and evidently he was partially drunk, and in a quarrelsome mood. The defendant and the other two with whom he was indicted had apparently been drinking during the evening, and were, as the evidence indicates, going about together. It also indicates that there had been something like a quarrel between them and Morrow, though by whom incited does not appear. At about 11 o'clock a witness (Rogan) saw defendant, and the two others indicted with him, and another walk from a saloon into the street. The witness entered the saloon, took a drink and came out, and saw the four men standing together in the street talking among themselves, and Morrow also in the street, 12 or 14 feet from and facing them. The latter was evidently intent on quarrelling with the four. To them, or in their hearing, he expressed a desire to fight them, applying to them a most insulting and opprobrious epithet. The four men then ran up to Morrow, and one of them (Anderson) struck him with his fist; one of the four men (the one not indicted) then appears to have gone away, and, the witness calling Swenson, the two started to go home, leaving defendant and Anderson standing near Morrow. As they were leaving, the witness heard defendant say something in Swedish which the witness did not understand, which caused Swenson to turn around, and start to go back. The witness also turned around, and saw Morrow in the act, apparently, of falling, though he did not stop to see whether he actually fell. At the time, defendant and Anderson were five or six feet from Morrow, Anderson being nearer to him than defendant. Within a very few minutes afterwards, the jury might find immediately after, Morrow staggered against the door of a saloon near which the parties had been standing, and, on those within opening the door, they found him lying on the ground with a deep gash, evidently made by a sharp knife or some similar instrument, in the left side of his neck, from which he died in a very short time.

From this evidence, which the jury might credit instead of that of defendant and Swenson, they might well find that the fatal blow was struck by defendant or Anderson. There are some circumstances from which they might find that it was struck by defendant. In the first place, -- although by itself it was not a strong circumstance, yet it might be considered, -- it was proved that about two weeks before, he had in his possession a jack-knife which, from its description, was capable of inflicting such a wound as that on Morrow; then it appears that, after what Rogan saw, Anderson and defendant immediately left, the former going home, and the latter in the same direction, and while those from the saloon were looking at the body of Morrow, immediately after he fell at the door of the saloon, defendant and Swenson came up to where ...