State v. M'Cartey

• Decision Date: 01 January 1872
• Citation: 17 Minn. 54
• Parties: STATE OF MINNESOTA v. MICHAEL McCARTEY.
• Court: Minnesota Supreme Court

17 Minn. 54

STATE OF MINNESOTAv.

MICHAEL McCARTEY.

Supreme Court of Minnesota.

Appeal from a judgment of the district court, Hennepin county.

Indictment against defendant and one Jerry McCartey for larceny of 10 barrels of flour, the property of William S. Judd and George A. Brackett.

A challenge was taken to the panel of the grand jury and overruled. A motion was then made to quash the indictment on the grounds that it was not entitled in any court having authority to try the same; the specific objection being that it was entitled in the district court, Hennepin county, instead of Hennepin and Manomin counties, and no minutes of the proceedings or records of the grand jury, showing that they have found such an indictment, were ever filed in the court. The motion was denied.

The defendants pleaded not guilty and elected to be tried separately. The other defendant was tried and acquitted, after which all the petit jurors on the regular panel were discharged from further attendance at the court, and a special venire was issued.

Defendant challenged the panel on the special venire, which was overruled. A motion by defendant for a continuance was also denied.

The defendant was convicted.

Wm. Lochren and W. W. McNair, for appellant.

F. R. E. Cornell, Atty. Gen., for respondent.

BERRY, J.

1. The failure of a sufficient number of the persons who had been regularly selected and summoned as grand jurors to appear when called in court, presented a case of "deficiency of grand jurors" within the meaning of section 10, c. 107, Gen. St. The defendant's challenge to the panel was therefore properly overruled.

2. The facts that the indictment is indorsed "a true bill," the indorsement signed by the foreman, and the indictment properly filed, are evidence that the indictment has been "found" by the grand jury. Chapter 108, §§ 57, 60, Gen. St. The indictment should have been entitled of the counties of Hennepin and Manomin, instead of being entitled as it was of the county of Hennepin only, (Laws 1867, c. 112, § 1;) but the defect was one of form merely, and could not have prejudiced any "of the substantial rights of the defendant upon the merits." Gen. St. c. 108, §§ 10, 11. The motion to set aside the indictment was well denied.

3. There was no error in refusing the continuance prayed for. There was no proper evidence before the court of the sickness of the witness on account of whose alleged inability to attend the trial the continuance was asked. The defendant's affidavit states that defendant is informed and believes that such witness is sick, etc., and the only other evidence of such sickness is the unsworn certificate of a physician. And besides this, an application for a continuance is addressed to the sound discretion of the court, — Allis v. Day, 14 Minn. 516, (Gil. 388,) — whose action is not reviewable unless abuse appears, as is not the case here.

4. All the petit jurors of the regular panel for the term having been discharged by the court from further attendance, there was an entire absence of jurors of the regular panel, and by section 17, c. 64, Gen. St., when this occurs from "any cause," a special venire may be issued, as was done in this instance. The objections to the manner in which the sheriff, to whom the special venire issued, selected and summoned the jurors, and to his inquiries in reference to the "opinions and bias of persons relative to this cause," (although if such objections are based on facts the sheriff's conduct is reprehensible,) do not furnish ground for "a challenge to the panel," which "can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury." Gen. St. c. 116, § 4. Section 17, c. 64, Gen. St., under which the special venire was issued, prescribes no forms except that a special venire shall issue to the sheriff of the county, commanding him to summon from the county at large a number therein named of competent persons to serve as jurors during the term, and there is no claim that these directions were not complied with. There was therefore no error in overruling the challenge to the panel of petit jurors.

5. It would seem that the testimony of Judd & Williams in respect to the rules adopted by the proprietors of the mill forbidding millers to sell flour or feed in the night time was hardly proper to be received, unless it was made to appear that knowledge of such rules was brought home to the defendant. But if this testimony was improperly received, any injurious influence which it could possibly exert on the minds of the jury was, we think, guarded against by the charge of the court, by which they were instructed that unless they found that the defendant was informed that Young (the miller from whom defendant obtained the alleged stolen property) had no authority to sell such property, the defendant was not guilty of any wrong in purchasing from him. The jury are bound "to receive as law what is laid down as such by the court," (Gen. St. c. 116, § 11,) and presuming (as we deem it proper to do in this case) that the jury received and acted upon the law given to them by the court, we think the evidence referred to could not have prejudiced the defendant.

6. The indictment in this case charges the defendant with simple larceny. It is insisted that the evidence in the case tended to show only that defendant was an accessory to an embezzlement by Young, the miller, and that it was therefore improperly admitted under the indictment. Admitting that the evidence tended to show an embezzlement by Young, and admitting further that the defendant, upon the evidence, might very properly be regarded as having aided Young, or as having been an accessory before the fact to the embezzlement, we think the evidence also fairly tended to show that the defendant had committed larceny.

It is argued (as we understand defendant's counsel) that larceny necessarily involves a trespass, and that there was no trespass here, because the flour taken was in the possession of Young by virtue of his employment, and defendant took it with Young's consent. The evidence, however, showed that Young was a mere servant of the proprietors of the mill, so that he had only a custody of the flour, the possession being in his masters. 2 Bish. Crim. Law, § 829 et seq. People v. Call, 1 Denio, 120. It will hardly be claimed that there was no evidence tending to show that the flour was taken without the consent of such proprietors, and without any authority from them. If so taken, the taking of it involved a trespass, notwithstanding the servant who had the custody thereof consented to the taking. 2 Bish. Crim. Law, § 827; Regina v. Sheppard, 9 Car. & P. (38 E. C. L.) 121; Rex v. Small, 8 Car. & P. (34 E. C. L.) 46.

7. We are unable to perceive upon what tenable ground the testimony of Young as to transactions and conversations with Patrick Irwin was admitted. It was not shown that the defendant was present at the same, or had any connection with them, nor, so far as we can discover, is there anything in the testimony which tends to show that the defendant and Irwin were confederates in the transactions testified to. We think the court erred in receiving this testimony against defendant's objection, and we cannot say that it did not operate upon the minds of the jury unfavorably for the defendant.

8. There was no error in excluding the questions addressed to Young, on cross-examination by defendant, as to whether he paid over the money received by him for flour and feed to his employers, Judd & Brackett, and if so, when and under what circumstances.

The receipt of the money by Judd & Brackett from Young could not operate, by way of ratification or otherwise, so as to divest the defendant's acts of their criminality, as appears to be contended, nor are we able to conjecture any purpose for which answers to the questions could have been important or useful to the defendant; and without some statement as to the object for which the questions were asked, we cannot say that the court was not justified in disallowing them.

9. Defendant upon cross-examination asked Young: "Did you not steal a gun from George A. Brackett since these cases have arisen?"

This was a question such as is not unfrequently permitted to be put to a witness upon cross-examination for the purpose of discrediting him with the jury, although entirely irrelevant to the issues in the case. As to questions of this character the rule is that their allowance or disallowance rests in the sound discretion of the presiding judge, — McArdle v. McArdle, 12 Minn. 98, (Gil. 70;) Hathaway v. Crocker, 7 Metc. 266; Great Western Turnpike Co. v. Loomis, 32 N. Y. 132; Le Beau v. People, 34 N. Y. 230; Shepard v. Parker, 36 N. Y. 518; 1...