State v. Masteller

• Decision Date: 22 December 1890
• Citation: 47 N.W. 541,45 Minn. 128
• Parties: State of Minnesota v. George Masteller
• Court: Minnesota Supreme Court

47 N.W. 541

45 Minn. 128

State of Minnesota v. George Masteller

Supreme Court of Minnesota

December 22, 1890

Defendant was tried and convicted in the district court for Todd county, before Searle, J., on an indictment charging that "the said George Masteller, on the 3d day of April A. D. 1886, at the town of Reynolds, in said county of Todd and state of Minnesota, unlawfully and carnally knew and abused" (a person named) "then and there a female child under the age of ten years; contrary to the form of the statute," etc. He appeals from a judgment that he be imprisoned at hard labor for 10 years in the state prison.

Judgment reversed, and a new trial granted.

D. W Bruckart and A. M. Crowell, for appellant.

Moses E. Clapp, Attorney General, and E. B. Wood, for the State.

OPINION

Collins, J.

The defendant was charged with the crime specified in section 236 of the Penal Code, alleged in the indictment to have been committed in the county of Todd on the 3d day of April, 1886. On the trial the proof as to the day on which the offence was committed corresponded exactly with the allegation in the indictment, and it also clearly appeared that the child became 10 years of age on that same day. When the state rested its case, this point was made by the defence, and a motion made that the jury be directed to return a verdict of not guilty. Thereupon the state asked for leave, and was permitted, to show by the witnesses that the defendant had attempted to commit the felony charged in the indictment on the 26th day of February, 1886, at another place, namely, in the county of Douglas, but within 100 rods of the Todd county line. The defendant objected to a reopening of the case, and repeatedly objected to testimony which might tend to show an attempt to commit the crime on the day last mentioned, or at any other time, or at the place specified, or elsewhere. These objections were overruled, and exceptions were properly taken. The testimony then produced by the state was to the effect that on February 26, 1886, at a dwelling-house situated in Douglas county, but within five rods of the Todd county line, the defendant had attempted to have carnal knowledge of the child, without success. The jury was instructed that upon the evidence the accused could not be convicted of the principal offence, but that he might be found guilty of the attempt referred to. Under this instruction, he was convicted of an attempt to commit the crime charged in the indictment. There are quite a number of assignments of error which need no consideration.

Under this indictment, the prosecution could have shown that the alleged crime -- a felony -- was perpetrated on February 26 1886, and at a point in another and adjoining county, if within 100 rods of the dividing line between it and the county of Todd. Except when time is a material ingredient of the offence, it is not essential that it be precisely stated in the indictment; and evidence of its commission on a day other and prior to that laid is competent. Gen. St. 1878, c. 108, § 7; State v. New, 22 Minn. 76; State v. Lavake, 26 Minn. 526, (6 N.W. 339.) It is also settled that where a crime is committed within 100 rods of the dividing line between two counties, the indictment may aver it to have been committed in the county in which it is prosecuted, and under such an averment the state will be allowed to show that it was committed in the adjoining county. Section 20, c. 108, supra; State v. Robinson, 14 Minn. 333, (447.) See, also, State v. Anderson, 25 Minn. 66. So that had the testimony been confined to what transpired on February 26th, the child then being under the age of 10 years, and had the proof been sufficient as to the commission of the offence, the defendant might have been lawfully convicted as charged in the indictment; and, as provided by section 32 of the Penal Code, he could have been found guilty of an attempt to commit the crime. But such was not the situation when the defendant was tried and convicted. The state took its position, selecting the particular offence for which it wished to prosecute. It attempted to establish by proof the commission of an offence upon the day named in its indictment. Failing in this, because the girl had reached the age of 10 years on that day, it was permitted, notwithstanding defendant's protest, to reopen the case and go into facts surrounding another and different occurrence, entirely independent, except in nature, of the one for which the defendant had already been tried. If he had been accused and tried for an assault and battery committed on this child on the 3d of April, and through some technicality the state had failed to make out a case, could it have been permitted to change its position and to have...