State v. King

• Decision Date: 09 January 1903
• Citation: 92 N.W. 965,88 Minn. 175
• Parties: STATE v. KING.
• Court: Minnesota Supreme Court

88 Minn. 175

92 N.W. 965

STATE

v.KING.

Supreme Court of Minnesota.

Jan. 9, 1903.

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Norman W. King was convicted of being accessory to a felony, and from an order denying a new trial he appeals. Affirmed.

Syllabus by the Court

1. An indictment charging the accused with being an accessory to a felony after the fact should allege facts constituting the felony with the same degree of certainty as though the person who committed it were alone indicted. The indictment under which defendant was convicted is held sufficiently definite and certain in this respect.

2. Defendant offered to show on the trial that a witness called by the state was a confirmed user of opium, had been addicted to its use for years, and that such use renders the person unreliable in his statements and prone to falsehood. The evidence was excluded by the trial court, and the ruling is held not error. The witness was before the court and jury. His appearance, demeanor, and the manner in which he gave his testimony, whether straightforward and unequivocal, or in a manner indicating untruthfulness or an unbalanced mind, were sufficient from which his credibility could be determined.

3. The extent to which the cross-examination of a witness may go for the purpose of testing his credibility, or showing his bias, prejudice, or hostility, rests in the sound discretion of the trial court. The fact that such an examination is permitted to go beyond reasonable limits is not reversible error, where the witness thus examined gave no testimony pertinent to any material issue in the case.

4. It is a discretionary right and duty of a trial court, in the interest of the orderly conduct of proceedings before it, to rebuke and reprimand overzealous and overwilling witnesses when they constantly attempt to inject evidence into the case not called for by questions put to them; and its action in that behalf, where no reflections are cast upon the credibility of the witness, does not constitute reversible error, unless a clear abuse of discretion be shown.

5. Defendant moved for a new trial on the ground, among others, of misconduct of the jury. At the hearing of the motion he applied to the court for permission to examine the jurors orally in open court touching the alleged misconduct. The application was denied; and it is held that, conceding that the misconduct complained of (indulgence in intoxicating liquor during the trial) might be shown by affidavits of the jurors, it was not an abuse of discretion in the trial court to refuse to permit them to be examined orally on the subject. The matter was one resting almost wholly in its discretion.

6. The record is examined and considered, and it is held (1) to present no reversible error; and (2) that the evidence sustains the verdict of the jury. Welch, Hayne & Hubachek, for appellant.

F. H. Boardman, Co. Atty., C. S. Jelley, Ass't Co. Atty., W. C. Leary, Ass't Co. Atty., W. B. Douglas, Atty. Gen., and C. W. Somerby, Ass't Atty. Gen., for the State.

BROWN, J.

Defendant was indicted, tried, and convicted in the district court of Hennepin county as an accessory to a felony after the commission thereof, and he appealed from an order denying his motion for a new trial. We shall take up and dispose of the assignments of error, or those we deem necessary to refer to specially, without a preliminary statement of the facts in the case, any further than is found in the indictment, the main portions of which are set out below. The facts in detail will more fully appear in connection with some of the propositions discussed and decided. The various assignments present the questions (1) whether the indictment charges a public offense; (2) whether any errors prejudicial to defendant were committed on the trial below; and (3) whether the evidence is sufficient to sustain the verdict of the jury. The questions will be disposed of in the order stated.

1. It is urged that the indictment does not state facts sufficient to constitute a public offense, in that it fails to charge with sufficient definiteness and certainty that the principal named therein, Harry Adams, had committed the crime of which defendant is charged with being accessory after the fact. It is, within all the authorities, necessary to aver and allege in an indictment charging a person with being an accessory to a felony after the fact that a felony was committed by the principal, the facts constituting which must be alleged and set forth with the same degree of certainty as though the principal were alone indicted. It is not sufficient to charge that the principal committed a felony, naming it, but the facts constituting the same must be particularly averred. The point made against the indictment in the case at bar is that it charges the commission of a crime by the alleged principal by way of inference and recital only, and not by direct and positive averments. The indictment, so far as here involved, is as follows: ‘And said Norman King being then and there a police officer in said city of Minneapolis, and being then and there duly appointed, qualified, and acting as such police officer, and then and there executing the functions of a public office, to wit, of a police officer of said city of Minneapolis; that said Norman W. King did then and there have knowledge that Harry Adams, John Reid, and Herman Miller, whose true names are to the grand jury unknown, did on the first day of March, A. D. 1901, at the city of Minneapolis, in said Hennepin county, then and there being, willfully, unlawfully, wrongfully, knowingly, and feloniously take, steal, and carry away in the nighttime of said day, from the person and possession of one John S. Hooper, one diamond stud, of the value of one hundred and ten dollars; a more particular description of said property being to the grand jury unknown; said property being then and there the property of and on the person of the said John S. Hooper,-with intent then and there had and entertained by them, the said Harry Adams, John Reid, and Herman Miller, and each of them, to deprive the said John S. Hooper, the true owner of said property, of his said property, and to appropriate the same to the use of them, the said Harry Adams, John Reid, and Herman Miller; that the grand jury of Hennepin county, Minnesota, at the city of Minneapolis, in said county and state, on the eighth day of April, A. D. 1901, duly returned an indictment against the said Harry Adams and John Reid of having committed the crime of grand larceny in the first degree, committed as follows: The said Harry Adams and John Reid on the first day of March, A. D. 1901, at the city of Minneapolis, in said Hennepin county, then and there being, did willfully, unlawfully, wrongfully, knowingly, and feloniously take, steal, and carry away in the nighttime of said day from the person and possession of one John S. Hooper one diamond stud, of the value of one hundred and ten dollars, a more particular description of said property being to the grand jury unknown; said property being then and there the property of, in the lawful possession of, and on the person of the said John S. Hooper,-with intent then and there had and entertained by them, the said Harry Adams and John Reid, and each of them, to deprive the said John S. Hooper, the true owner of said property, of his said property, and to appropriate the same to the use of them, the said Harry Adams and John Reid.’ Then follow further allegations of knowledge on the part of defendant King, and that he aided and assisted Adams to escape trial and conviction. The form of this indictment is not to be commended, though we think, after careful consideration of the objection made against it, that it sufficiently charges the commission of a felony by Adams, not by way of inference, but by distinct, positive allegations, and that the objection to it was properly overruled. The introductory part of the indictment charges that defendant had knowledge that Adams, Reid, and Miller ‘did wrongfully and unlawfully take, steal, and carry away,’ in the nighttime, a diamond stud from the person of one Hooper. This is, perhaps, not a direct allegation that Adams, Reid, and Miller took and carried away the diamond, but, instead, an averment that defendant knew that they had done so, and the facts in reference to the commission of the crime by those parties,-a recital of what defendant had knowledge of. But further on it is distinctly charged that the grand jury indicted Adams and Reid, accusing them of having committed the crime of grand larceny in the first degree, ‘committed as follows,’ and then follow explicit and direct averments of all facts essential to an indictment for the crime stated. The words ‘committed as follows,’ following the allegation that Adams and Reid were indicted by the grand jury, are equivalent to ‘which said crime was by them committed as follows.’ So that if the first part of the indictment, which we have characterized as introductory, be construed as referring to the crime committed by Adams and Reid by inference and recital only, or be wholly rejected as surplusage, the part we have just referred to, not being dependent upon the preceding allegations, distinctly charges not only that defendant knew that Adams had committed a felony, but all the facts and elements essential to constitute such a crime. We therefore hold the indictment sufficient.

2. After the arrest of Adams, his brother Charles, upon being informed thereof, and upon the statement of defendant that the only way he could secure his release was to return the stolen diamond, raised money by subscription to purchase it from the person to whom the thieves had sold it,-actually obtained it by the assistance of one Edwards, and delivered it to a saloon keeper named Murphy, to be delivered subsequently to defendant to effect the release of the imprisoned Adams. The...