State v. Kolander

• Decision Date: 21 March 1952
• Docket Number: No. 35456,35456
• Citation: State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (Minn. 1952)
• Parties: STATE v. KOLANDER.
• Court: Minnesota Supreme Court

Page 458

52 N.W.2d 458

236 Minn. 209

STATE v. KOLANDER.

No. 35456.

Supreme Court of Minnesota.

March 21, 1952.

Syllabus by the Court.

1. In a prosecution for arson, both the corpus delicti and the criminal agency of defendant may be established by circumstantial evidence.

2. Where sufficient foundation is laid showing that deputy fire marshal had made a great many investigations of incendiary fires, it was not error to permit him to testify that in his opinion the fires was 'torched.'

3. Results of lie-detector tests being inadmissible, it was prejudicial error to admit evidence showing that defendant had refused to submit to such tests.

4. Statements of prosecuting attorney in summation of case to the jury Held to be prejudicial.

5. The sufficiency of foundation showing qualifications of handwriting expert rests largely in the discretion of the trial court. Evidence examined and Held no abuse of discretion.

Alfred J. Weinberg, Duluth, for appellant.

J. A. A. Burnquist, Atty. Gen., Thomas J. Naylor, County Atty., Duluth, John C. Arko, Asst. County Atty., Virginia, for respondent.

KNUTSON, Justice.

Defendant was convicted of the crime of arson in the third degree. He appeals from an order denying his motion for judgment notwithstanding the verdict (which was considered by the trial court as a motion for dismissal) or for a new trial. The information charges that defendant did wilfully, wrongfully, unlawfully, and feloniously burn and set on fire a motor vehicle. In view of the fact that the evidence upon which the conviction rests is entirely circumstantial, a rather detailed statement of the evidence is essential to an understanding of the problems raised by this appeal.

At the time of the alleged commission of the crime defendant lived with his father in Duluth. He was then an unmarried man. For a time during his youth defendant had lived near Zim, which is about 18 miles south of Hibbing. While living there, he became acquainted with Niilo Luikkonen and other members of Niilo's family. Defendant's sister is married to a brother of Niilo, Dave Luikkonen, and they lived near Zim. About a week before December 8, 1946, defendant visited his sister. While there he renewed his acquaintance with Niilo Luikkonen. Before he left for his home he made arrangements with Niilo to visit him again in the near future. On December 5, he mailed a letter, written in Duluth, to Niilo saying that he would see him on 'Sunday afternoon between 3 and 4 as we agreed.' On Sunday morning, which was December 8, he left Duluth on a bus. The house in which he had been staying with his father had been sold, so he took most of his belongings with him in a suitcase. He arrived in Hibbing about one o'clock in the afternoon. It had been prearranged that Niilo would pick him up at the bus depot. Niilo was busy helping his brother put up hay and saw wood, and he also wanted to check his trap lines, so arrangements were made to have Kenneth Luikkonen, a son of Dave and defendant's sister, go to Hibbing to pick up defendant in place of Niilo. Accordingly, Kenneth and his girl friend drove to Hibbing and picked up defendant at the bus depot about three or four o'clock. Defendant had no luggage with him at that time. He informed Kenneth that he had checked his suitcase and would pick it up later. Kenneth took defendant to the John Waldo farm near Zim, where he met Niilo about 4:30 p.m. From the Waldo farm, defendant and Niilo drove to the home of Dave Luikkonen in Niilo's car. Defendant had brought two pints of whiskey with him from Duluth. On the way to Dave's home they opened one bottle and drank some of the whiskey, and at Dave's home they finished the first pint, with the help of Dave, and opened the other pint and consumed about a quarter of its contents. They then had a lunch, and about 6 or 6:30 defendant and Niilo went to the latter's house, where Niilo changed from his working clothes into other clothes. The next morning Dave found the whiskey bottle still about one-quarter full. They left Niilo's house about eight or nine o'clock and drove to Buddy's Tavern, located a short distance away. While there, Niilo visited with a friend, Fred Maki.

Up to this point there is not much conflict in the evidence. From this point on, the evidence of defendant and that of the witnesses called for the state cannot be reconciled. There is a dispute in the evidence as to when defendant and Niilo left Buddy's Tavern. Battista Anselmo, the owner of Buddy's Tavern, said that they came about seven or eight o'clock and left about nine or ten. Fred Maki testified that they were there when he came at eight o'clock and that they left before he did, which was about ten o'clock. He thought that they left about nine o'clock. Another witness, Knute Brosie, testified that he arrived at the tavern about nine o'clock and that they were there then; that he left about 9:30 and they were still there. Defendant testified that he and Niilo left between 10 and 11 p.m. It is not disputed that before they left they purchased about five gallons of gasoline, which Anselmo filled into the car. Defendant paid one dollar for the gasoline. The car was then facing east in the direction of Duluth. Defendant drove as they left Buddy's Tavern. That is the last time Niilo has ever been seen or heard from. He completely vanished, and no trace of him has ever been found.

Niilo's car was later found on a dirt and gravel side road, known as the Kane Road, at a place about six or seven miles from Mountain Iron. The spot where the car was found is further located as being about two and one-half to three miles from the intersection of Kane Road with U.S. highway No. 169; five or seven miles from Virginia; and eight to ten miles from Buddy's Tavern. The car had been driven off the road into the area immediately bordering the road and, when found, was badly destroyed by fire. The interior was nearly completely gutted. The glass in the windows had been completely melted out. The rear tires had been partly burned, and the exterior of the car was also burned near the rear. The engine and front part of the car were not damaged.

Of the five young people who witnessed the fire that night, the state called as witnesses the three boys: Herbert Hall, Tom Rebrovich, and Paul Horoshak. They testified that on the evening of December 8 they were taking two girls home from Eveleth to Mountain Iron along the Kane Road; that they observed the car, later identified as Niilo's car, along the side of the road about 11 or 11:30 p.m.; that it was then on fire; and that they stopped to view it. Herbert Hall testified that one rear tire was burning and that the inside of the car was practically burned out, but that the seats were still smoldering. There was no one in or near the car. The boys testified that it was snowing lightly and that they could observe one set of footprints leading from the driver's side of the car to the rear and then along the road toward Mountain Iron. In much of his testimony Hall was corroborated by Rebrovich. Horoshak said that he did not look into the car, but saw that it had burned and that the tire was flickering. Four miners who were called as witnesses testified that they lived at Eveleth and were traveling the Kane Road to their work at Chisholm on the morning of December 9; that they passed the car about 7:30 a.m. and that it had been burned at that time; and that they saw it again on their way home about 4:30 that day, but did not stop to examine it until Wednesday of the same week. One of the miners was a brother of Herbert Hall. The two brothers discussed the matter between them, and Herbert fixed the date when he first saw the car as the night before his brother saw it. The state also called one William E. Holmes, a temporary mail carrier who delivered mail over this route. He testified that he saw the car on Monday, December 9, at 9 or 9:15 a.m., and that the car was then burned; that he saw no fire or smoke at that time; that he traveled the route only on Mondays, Wednesdays, and Fridays; and that on the Wednesday after he first observed the car he stopped to look at it and then observed that the interior was badly burned.

On Wednesday, December 11, C. P. Murphy, a deputy sheriff from Virginia, went out to investigate the car. He found the inside almost completely burned out. At that time he did not know whose car it was, nor had the disappearance of Niilo been reported.

Defendant's version of the night's activities is completely inconsistent with the above evidence. He testified that he left Buddy's Tavern about eleven o'clock and drove to Hibbing; that they stopped at the Rex Tavern in Hibbing, where they drank some beer; that Niilo obtained a fifth of whiskey at that place; and that they remained in the tavern until closing time and then left. Defendant claims that they then called on some friends of Niilo's who lived in Hibbing. He stated that they were elderly Finnish people about 55 years of age and that they were friends of Niilo's but were unknown to him; that they had some drinks from Niilo's fifth of whiskey at that place; that they left this house sometime between one and two o'clock in the morning and drove back to the bus depot, where defendant was going to pick up his suitcase; that they found the depot locked, so they parked their car in a parking lot and went to sleep in it; the they slept until about 6 a.m., and when the depot opened defendant picked up his suitcase; that they then had a cup of coffee and some rolls, after which they drove to Virginia, where they arrived about 8 a.m.; that they talked together about 20 minutes at Virginia; and that defendant then went into a tavern where he inquired about obtaining a room and was referred to the Holland Hotel. Defendant further testified that he went to such hotel and registered for a room. The hotel register, which was introduced in evidence, shows that he did obtain a room sometime...