State v. Mason

• Decision Date: 09 June 1922
• Docket Number: No. 22590.,22590.
• Citation: 189 N.W. 452,152 Minn. 306
• Parties: STATE v. MASON.
• Court: Minnesota Supreme Court

152 Minn. 306

189 N.W. 452

STATE

v.MASON.

No. 22590.

Supreme Court of Minnesota.

June 9, 1922.

Appeal from District Court, St. Louis County; S. S. Nelson, Judge.

Max Mason was convicted of rape, and from an order denying a motion for a new trial, he appeals. Affirmed.

Dibell, J., dissenting.

Syllabus by the Court

The Constitution of this state provides that no person shall be compelled in any criminal case to be a witness against himself. Under this provision a man cannot be compelled to give evidence against himself before a grand jury, but one called before a grand jury investigating a particular crime may be indicted on the evidence of others, so long as he is not compelled to give evidence against himself. No constitutional right of the defendant in this case was impaired.

The identification of defendant as one of those engaged in the commission of a crime charged was sufficient. Identification may be sufficient though the person making it cannot remember the face of the person identified. Identification based upon other peculiarities may be reasonably sure.

In a prosecution for rape, evidence is admissible that the defendant had a venereal disease and that the complainant soon after the alleged commission of the crime contracted the same disease. The evidence in this case as to the time when defendant and complainant had such a disease is sufficient to render it admissible.

In a prosecution for rape, penetration may be proven by circumstantial evidence. The evidence of penetration in this case was sufficient. F. L. Barnett, of Chicago, Ill., and R. C. McCullough, of Duluth, for appellant.

Clifford L. Hilton, Atty. Gen., and W. E. Greene., Co. Atty., of Duluth, for the State.

HALLAM, J.

Defendant was convicted of the crime of rape. He appeals from an order denying a motion for a new trial. It appears that on June 14, 1920, Robinson's Circus came to Duluth. The testimony on the part of the state is as follows: In the evening after dark, a young woman of 19 was about the circus grounds in company with a young high school boy. They mingled in the crowd outside the tents but after a while found themselves at a place from which all other spectators had gone. On turning to go themselves, they were suddenly confronted by five or six negroes attached to the circus, who blocked their path. One placed a gun at the young man's head and threatened to shoot if he spoke. Another seized the young woman and placed his hand over her mouth. Both were forced to go to a ravine about a block away. The young woman there became unconscious and all the negroes save one ravished her. She became conscious as this last one was assaulting her. Both were then released and were directed to go in a direction opposite from the circus. The young man escorted the young woman to her home and then went to work at night employment at which he was engaged but soon sought out his father and told him the story. The families of both young people immediately took the matter up and reported the facts to the police. A number of negroes attached to the circus were arrested on suspicion and on the following morning were brought before the young people. Naturally both were very much excited. They could identify none of them. Later, and about the middle of July, they made the identification of defendant and one other. This identification will be referred to hereafter in more detail. Defendant and others were indicted. While the investigation was going on, and two days after the crime was committed, there came the lamentable occurrence of a frenzied crowd taking the law into their own hands. No violence was done to this defendant.

1. Defendant moved to quash the indictment on the ground that he had been called before the grand jury that returned the indictment against him and was there compelled to testify against himself. The trial court denied the motion.

[1] The Constitution of the state very explicitly provides that--

‘No person * * * shall be compelled in any criminal case to be a witness against himself.’ Article 1, § 7.

The language is unequivocal. Nothing can be detracted from it; nothing added to it. It forbids that a man be compelled to give evidence against himself before a grand jury as well as in court. State v. Froiseth, 16 Minn. 296 (Gil. 260); State v. Gardner, 88 Minn. 130, 92 N. W. 529. He cannot be compelled to give evidence as to any facts tending to accuse himself of crime or to prove any link in the chain of testimony which is necessary to convict him of a crime. 3 Wigmore on Evidence, § 2260; State v. Gardner, supra. The constitutional provision does not, however, prohibit receiving a man's evidence even against himself if he is not compelled to give it, and it does not prohibit his being compelled to give testimony against another, even though he may be charged with or suspected of the same crime; nor does it prohibit the state from calling before a grand jury one suspected of a crime under investigation, so long as he is not compelled to give evidence against himself (Hawley v. Wallace, 137 Minn. 183, 163 N. W. 127), and there is nothing in the Constitution which prohibits the grand jury before which he is so called and examined from indicting him on the evidence of others. The Constitution makers had no purpose to tie the hands of the state so that it may not investigate intelligently the authorship of crime. Bearing these principles in mind the disposition of this question is simple. The motion to quash was heard on conflicting affidavits. Those presented by the state aver that defendant was called in the course of a general investigation of the facts concerning the crime against the young woman with no particular charge against any one; that he was not compelled to give evidence against himself, but was distinctly told that he was not asked to do so. From the affidavits presented, the trial judge might find these to be the facts. On this state of facts we have no hesitation in saying the defendant's constitutional rights were not impaired.

2. It is said the identification of defendant was not sufficient. The jury might have so found. But they found it sufficient and the evidence justifies this finding. When defendant was first brought before them, neither the young man nor the young woman identified him. Later both of them did so. A number of negroes were taken to the scene of the crime on evenings when the light was about the same as it was when the crime was committed. There they were brought before the young man and the young woman separately, and each, acting independently, picked out defendant as one of the guilty men. Both said they identified defendant, not from his face, but from his size, his general appearance, his talk and his walk. If but one had identified defendant in this manner the evidence might properly be considered weak, but when both, acting independently, picked out defendant, the testimony became much stronger. Identification may be sufficient though the person making it cannot remember the face. Identification based upon other peculiarities may be reasonably sure.

These further facts are important. Dr. Nicholson gave evidence that he examined defendant about the middle of July, and defendant then had a venereal disease which he had probably had as much as a month before, and that defendant admitted to him that he had the disease and that he had received no attention since he had been up there. He examined the other negroes who were accused and none were diseased. Dr. Coventry testified that on July 10 the young woman was suffering from the same disease and that the disease manifests itself from two to ten days after contact. She testified that she first noticed evidence of the disease ten days or two weeks after June 14. On cross-examination she impaired the force of this statement as to time. She testified, however, that she had never had intercourse with any other man. It seems clear without comment that this testimony taken all together made out a chain of circumstantial evidence corroborative of the testimony of the young man and woman. See 33 Cyc. 1476; People v. Glover, 71 Mich. 303, 38 N. W. 874.

[3] 3. Defendant contends that it was error to receive this line of testimony. He admits that it ‘probably was of controlling influence with the jury.’ This admission in itself goes far toward determining its admissibility, for the courts should be slow to exclude in a lawsuit classes of evidence which are precisely the considerations that would influence men of affairs in deciding a business proposition. Connected as the facts are, we are of the opinion that the testimony was all clearly admissible.

[4] 4. Defendant contends that no crime was proven because no one testified to the fact of penetration. The complaining witness was unconscious at the time of the assault and it is said the young man, who was a few feet away, did not give explicit proof on this point. The contention is not sustained. There is abundant evidence of assault with the purpose of committing rape. Penetration, like any other fact, may be proved by circumstantial evidence. People v. Scouten, 130 Mich. 620, 90 N. W. 332;Taylor v. State, 111 Ind. 279, 12 N. E. 400. It is often necessary to so prove it. Usually the only persons present are defendant and complainant. It would be unthinkable to hold that because the criminal renders his victim unconscious no proof can be made of the crime. The proof in this case is sufficient. There is the evidence of the young man which for all practical purposes is direct proof. There is the proof of ensuing disease, and there is proof of numerous slightly corroborative circumstances. The evidence of a physician who examined complainant that he could not say there had been penetration is not conclusive that penetration had not taken place. The doctor himself made that clear.

We find no error in the record and the order appealed from is affirmed.

DIBELL, J. (dissenting).

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