State v. Lautenschlager

• Decision Date: 20 April 1876
• Citation: 22 Minn. 514
• Court: Minnesota Supreme Court
• Parties: STATE OF MINNESOTA <I>vs.</I> GEORGE LAUTENSCHLAGER & others.

22 Minn. 514

STATE OF MINNESOTAvs.

GEORGE LAUTENSCHLAGER & others.

Supreme Court of Minnesota.

April 20, 1876.

The defendant was separately tried in the court of common pleas of Ramsey county, before Brill and Simons, JJ., upon the following indictment:

[Title.] "George Lautenschlager, Frank Rapp and Sophie Rapp are accused by the grand jury of the county of Ramsey, by this indictment, of the crime of murder committed as follows: The said George Lautenschlager, Frank Rapp and Sophie Rapp, on the first day of November, A. D. 1874, at the city of St. Paul, in this county, wrongfully, unlawfully and feloniously, and with force of arms, without authority of law, and with malice aforethought, killed one Ulrica Lick, by then and there cutting her, the said Ulrica Lick, with a hatchet, or with some other sharp instrument to the grand jury unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota."

During the empanelling of the jury, a proposed juror being called and presenting himself, the defendant's counsel, before challenging, asked to have him sworn to make true answers touching his qualifications and fitness to serve as a juror, in order to ascertain by such examination, or by such other examination as the court might direct, and before challenging, whether there was any cause for challenge of such juryman by the defendant. This the court refused to allow, and ruled that no questions could be put to the juror after he was called, touching his qualifications as a juror, until after a challenge had been interposed. The defendant excepted to the ruling and thereupon challenged the juror, and before any questions were asked the juror the state admitted the challenge, and the juror was ordered to, and did, stand aside, and was not sworn in the cause, to which order the defendant excepted.

Joseph Lick, Sr., a witness for the state, testified (among other things) that he was married to the deceased on May 15, 1874; that she was then a widow, with seven children, and that her name was Ulrica Haase; that, at the time of the homicide, the witness and the deceased, with said children, were occupying a lot on Tenth street, in St. Paul, on which was a building fronting on Tenth street known as the kitchen, and, about eighty feet in the rear of the kitchen, another building known as the new building, both of which were occupied by the witness and his family at the time of the homicide; that the defendant Rapp and his wife occupied the rear end of his (Lick's) premises, under a lease from deceased which gave Rapp a right of way over the premises on which the kitchen and new building were situated; and that the defendant Lautenschlager lived with his family upon a lot adjoining Lick's premises on the west.

The witness further testified that on the night of November 1, 1874, at about eleven o'clock, P. M., while he and the deceased were walking from the kitchen to the new building, the defendant sprang upon him and the deceased, and committed an assault upon the witness, who fell and became unconscious; that the deceased was struck by Lautenschlager with a stone-hammer or hatchet, and fell to the ground, and the witness never saw her afterwards; that the witness did not recover his consciousness until the third day afterwards, when he was informed of his wife's death; and that he saw no other person present at the assault except the deceased, Lautenschlager, and Frank and Sophie Rapp.

The witness also stated, on his direct examination, that a short time before the homicide the defendant Lautenschlager had abused the deceased, and said to the deceased and the witness that they (the deceased and the witness) had killed two of their children and set the house on fire, referring to a house that stood on the Lick premises in May, 1874, before the erection of the new building, and which was burned in that month, before the marriage.

On cross-examination the witness was asked the following question by defendant's counsel: "Did not the deceased give birth to twin children, of which you were the father, the day after your marriage to her?" In putting the question, the defendant's counsel stated that they proposed to follow up this evidence by showing that the witness was the father of these children, and that he resisted marrying the deceased until she would consent to convey to him, and did convey to him, the lot on which the kitchen, new building, and building occupied by Rapp were situated, which conveyance was made on May 9, 1874, a few days before the marriage, and the deed was recorded a few days after the marriage. The question was objected to as incompetent, irrelevant and immaterial, and not proper cross-examination. The objection was sustained, and defendant excepted.

The defendant's counsel, during the cross-examination, asked the following questions: 1. "Did the deceased give birth, the day after your marriage to her, to two living children; did they cease to live the next day, and, if so, do you know what caused their death? 2. Did you state to any one, at any time before the homicide, that your wife would be assaulted before the week was over, or words to that effect?" Both these questions were objected to and excluded on the same grounds as the former question, the defendant excepting.

During the cross-examination of this witness a view of the premises was had by the jury, pursuant to an order of the court, consented to by both parties, the defendant not being present at the view.

Afterwards the defendant's counsel asked the same witness the following question: "Before the fire, (referring to the burning of the house on the Lick premises in May, 1874,) were there not curtains, furniture and other articles taken from Mrs. Haase's (the deceased's) house to yours in the lumber-yard?" (referring to a lumber-yard where Lick had testified that he had resided immediately before his marriage, and at the time of the fire.) This was objected to as immaterial and not cross-examination. The objection was sustained, and the defendant excepted.

Dr. Boardman, a witness for the prosecution, testified as to the wounds upon the deceased, and also as to the wounds upon Joseph Lick, Sr., and as to his being unconscious the night of the homicide, after the homicide, and on the following day. He also testified that he had heard the testimony of Joseph Lick, which was to the effect that he remembered nothing that had occurred on the day after the homicide relating to any inquest, and did not remember seeing the county attorney, or answering any questions, or giving his deposition on that occasion — the fact being that he gave his deposition on that day, which was afterwards introduced in evidence by the defence, and contained a detailed account of the assault, and was signed by him. The witness was asked: "From the testimony, might he have been, in your opinion, in such a condition on Monday, (November 2,) as to unconsciousness, as not to recollect anything that occurred on that day?" This was objected to by defendant as incompetent and immaterial, and that a hypothetical case should be put. The objection was overruled, defendant excepting, and the witness, in answer to the question, stated, among other things, that the condition enquired about in the question might have existed.

The defendant's counsel requested the court to instruct the jury as follows: "1. The indictment herein is not an indictment for murder in the first degree. 2. The indictment herein is not an indictment under which the death penalty can be inflicted. 3. The indictment herein is not an indictment for murder in any of the degrees, or under which a verdict for murder in any of the degrees, can be rendered. 4. No verdict for murder or manslaughter herein can be found unless the jury are satisfied, beyond a reasonable doubt, that a cut was given to the deceased, either with a hatchet or with some sharp instrument, and that such cut was fatal." Each of these requests was refused, and the defendant properly excepted. The charge of the court, so far as excepted to, is stated in the opinion. The jury found the defendant guilty of murder in the first degree, and also found that he should suffer the death penalty.

During the trial, and while testimony was being given, Brill, J., was absent from the court on one occasion about twenty minutes, Simons, J., presiding alone, and adjourning the court during such absence. At the time the jury rendered their verdict, Simons, J., was not present, and Brill, J., alone presided.

The defendant moved for a new trial, and thereupon the court of common pleas certified the case to this court.

H. J. Horn and I. V. D. Heard, for defendant.

Geo. P. Wilson, Attorney General, for the State.

CORNELL, J.

1. The form of the indictment in this case is substantially that prescribed by the statute for murder, and that it is sufficient to support a conviction for murder in the first degree is res adjudicata in this state, and no longer open to discussion. Bilansky v. The State, 3 Minn. 427, 435; State v. Dumphey, 4 Minn. 438.

2. The fact that both the judges sat together during the principal part of the trial, and coöperated in conducting it, does not render the trial void, as claimed by appellant. Both possess equal and like jurisdiction, authority and power in all actions and proceedings in said court, save that in cases when they act jointly, and differ in opinion, that of the senior judge shall prevail. Both are authorized, except in motions for new trials, which must be heard jointly, separately to try court and jury cases during the same term and at the same time, to divide between them the business of the court, and otherwise to regulate the same, as they may jointly deem best. Laws 1875, ch. 69. The fact that both concurred in the doing of an act that each had the power...