State v. Jordan

• Decision Date: 30 July 1965
• Docket Number: No. 39701,39701
• Citation: 136 N.W.2d 601,272 Minn. 84
• Parties: STATE of Minnesota, Respondent, v. Ernest Lee JORDAN, Appellant.
• Court: Minnesota Supreme Court

Page 601

136 N.W.2d 601

272 Minn. 84

STATE of Minnesota, Respondent, v. Ernest Lee JORDAN, Appellant.

No. 39701.

Supreme Court of Minnesota.

July 30, 1965.

Syllabus by the Court

1. There are five principles which apply with respect to the submission of included crimes for consideration by the jury:

(a) A person prosecuted for a crime may be convicted either of the crime charged or an included crime, but not both.

(b) If a defendant is guilty as charged, or not at all, instructions with respect to lesser but included crimes are not appropriate.

(c) If the evidence adduced at trial would permit a finding of guilty of an included crime, defendant is entitled to appropriate instructions advising the jury of its power to return a verdict of guilty of the lesser offense.

(d) The right of the defendant to have such instructions given to the jury may be waived: (d1) expressly, or (d2) implicitly by failure to make proper request for such submission.

(e) Where the jury is provided with forms of verdicts and paragraph (c) above applies, a form of verdict should be included for use by the jury if it finds the defendant guilty of the lesser but included offense.

2. Where a new trial has been granted for an adequate reason this court will limit its consideration of claims of error which may not arise upon retrial.

2a. In evaluating an application for sequestration of witnesses in a criminal case, the court may properly consider whether the presence of a witness is needed to aid other witnesses in making an identification.

2b. Verbal exchanges between court and counsel may deprive the defendant in a criminal case of a fair trial.

2c. Upon retrial, the trial judge should be informed, before the formulation of his instructions, concerning all objections to the charge as given at the first trial so that error or dissatisfaction can be avoided so far as possible.

2d. Admission in evidence of a principal's confession in a criminal prosecution of another for aiding him may result in denial of due process of law when the principal cannot be cross-examined.

Newton S. Friedman, Duluth, for appellant.

Robert W. Mattson, Atty. Gen., St. Paul, John Arko, County Atty., William Stege, Asst. County Atty., Duluth, for respondent.

SHERAN, Justice.

Appeal from an order of the district court denying defendant's motion for a new trial.

Defendant was charged by information with the crime of aiding and abetting a theft in violation of Minn.St. 609.05, subd. 1, and 609.52, subd. 2(1), on March 12, 1964, at the Plaza Piggly-Wiggly Store located at 1130 East First Street, Duluth, Minnesota. A plea of not guilty was entered. The defendant was represented at trial by a court-appointed attorney, who also represents him on this appeal. Trial before a jury commenced May 11, 1964, and terminated in a verdict of guilty returned on the following May 14. Defendant moved promptly for a new trial which was denied by order of the district court dated June 22, 1964. On July 21, 1964, defendant was sentenced to imprisonment for a term not to exceed 2 years and was committed to the custody of the commissioner of corrections until released according to law.

Defendant contends that he was denied a fair trial in the following respects:

(1) A lesser and included offense was not properly submitted.

(2) Trial irregularities including

(a) failure to sequester a prospective witness;

(b) verbal exchanges between court and counsel which caused prejudice;

(c) improper instructions and unfair presentation by the state; and

(d) receipt in evidence of an oral confession attributed to the person defendant allegedly aided.

1. There are five principles which apply with respect to the submission of included crimes for consideration by the jury:

(a) A person prosecuted for a crime may be convicted either of the crime charged or an included crime, but not both. ¹

(b) If a defendant is guilty as charged, or not at all, instructions with respect to lesser but included crimes are not appropriate. ²

(c) If the evidence adduced at trial would permit a finding of guilty of an included crime, defendant is entitled to appropriate instructions advising the jury of its power to return a verdict of guilty of the lesser offense. ³

(d) The right of the defendant to have such instructions given to the jury may be waived (d1) expressly ⁴ or (d2) implictly by failure to make proper request for such submission. ⁵

(e) Where the jury is provided with forms of verdicts and paragraph (c) above applies, a form of verdict should be included for use by the jury if it finds the defendant guilty of the lesser but included offense. ⁶

Applying these principles:

Theft of an amount less than that specified as an essential element of the crime charged is an included offense. See, State v. Morris, 149 Minn. 41, 182 N.W. 721.

Minn.St. 609.52, subd. 2, provides in part:

'Whoever does any of following commits theft and may be sentenced as provided in subdivision 3:

'(1) Intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of the property * * *.'

Subd. 3 of the section provides:

'Whoever commits theft may be sentenced as follows:

'(2) To imprisonment for not more than five years or to payment of a fine of not more than $5,000, or both, if the value of the property or services is more than $100 but not more than $2,500; or

'(4) In all other cases where the value of the property or services is $100 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $100 * * *.'

Minn.St. 609.05, subd. 1, provides:

'A person is criminally liable for a crime committed by another if he intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.'

The evidence establishes that on March 12, 1964, money was appropriated at the Piggly-Wiggly Store at Duluth by one Arthur Porter. The evidence is adequate to support a finding that defendant intentionally aided in the theft by diverting the attention of the lady in charge of the cash register, thus permitting Porter to obtain possession of money in some amount. The critical fact question in the case was: How much did Porter take?

Mrs. Ruth Olson, the cashier, testified that defendant caused her to turn away from the register by soliciting help in selecting some paper bags so located that she could not give the assistance requested that (a) Porter was putting money in some register and from Porter who was then standing near it. A noise at the register reverted her observation. She then noted that (a)Porter was putting money in some amount in his pockets; (b) a $20 bill had fallen on a conveyor belt located between the cash register and the place where Porter was standing; (c) the cash register compartment where the $20 bills were kept was empty. However, Mrs. Olson was not in a position to testify exactly how much money had been removed.

The reckoning as to the exact amount of cash taken was based on a register short-age calculated by Alan Mettner, manager of the store. The practice, he said, was to put $200 in the register at the start of each day's business. Thereafter, all additions and withdrawals are noted or recorded. Based on past experience, the amount in the register at any given time would equal $200 plus recorded receipts minus noted withdrawals. Sometimes shortages not attributable to theft were noted but never in an amount exceeding $10. The variance between the amount in the register when checked just after the taking by Porter and the amount which by Mettner's calculations should have been there was $112.81.

In light of Mr. Mettner's testimony that the procedure followed by him was done routinely in the usual course of the store's business, and that he had found from long experience that this method of calculating was an accurate one, we believe that the jury would have been justified in finding the amount taken to have been over $100. See, State v. Biehoffer, 269 Minn. 35, 129 N.W.2d 918; State v. Dale, 159 Minn. 455, 199 N.W. 99; Horsey v. State,225 Md. 80, 169 A.2d 457; Hankins v. State, 115 Neb. 350, 213 N.W. 344. However, the necessary assumptions involved in this process of calculation, i.e., that the amount placed in the cash register at the start of business on March 12 was $200; that the receipts and withdrawals were accurately recorded; that no errors were made in the handling of cash by any employee; and that no unauthorized person other than Porter extracted money from the register, are not so compellingly certain as to bar jury consideration of the possibility that the amount taken by Porter might have been less than $100.

From the conclusion that the evidence adduced at the trial permitted a finding of guilty of aiding in the theft of an amount less than $100, it follows that defendant was entitled to appropriate instructions advising the jury of its power to return a verdict of guilty of the lesser offense, unless there was an express or implicit waiver of this right. We do not find in the record before us any statement made in behalf of the defendant indicating a preference that the jury be instructed that it find defendant guilty of having taken $100 or more, or, in the alternative, innocent. Defendant did request that the jury be instructed as follows:

'If you decide that Mr. Jordan did do the act, you must consider what is the amount that was taken since, if it is under $100.00, it is only a misdemeanor, but if it is over $100.00, it is then a felony. The amount taken must be proved beyond a reasonable doubt.'

The prosecution urged the jury to find that the amount taken was in excess of $100. Defendant's presentation of this aspect of the case to the jury is illustrated by these comments:

'* * * We don't have to prove innocence or to prove that we didn't...