State v. McLaughlin

• Decision Date: 26 July 1957
• Docket Number: No. 37090,37090
• Citation: 84 N.W.2d 664,250 Minn. 309
• Parties: STATE of Minnesota, Respondent, v. Barney McLAUGHLIN, Appellant.
• Court: Minnesota Supreme Court

Page 664

84 N.W.2d 664

250 Minn. 309

STATE of Minnesota, Respondent, v. Barney McLAUGHLIN, Appellant.

No. 37090.

Supreme Court of Minnesota.

July 26, 1957.

Syllabus by the Court

1. One accused of a crime cannot be convicted upon the uncorroborated testimony of an accomplice. The corroborating evidence, independent of the testimony of the accomplice, must tend in some degree to establish the guilt of the accused, but it need not be so weighty or full that, standing alone, it would justify a conviction. The corroboration must tend to convict the person charged, and it is not enough if it merely shows the commission of the offense or the circumstances thereof.

2. While corroborating evidence must be such as tends to show some connection of the defendant with the acts constituting the crime charged, yet it is unnecessary that there should be corroboration as to every probative fact. Corroboration need not be direct and positive but may be circumstantial, nor does the statute require a case to be made out against the prisoner sufficient for his conviction before the testimony of an accomplice can be considered.

3. If such corroboration be circumstantial in nature, it must have standing as corroborative evidence which tends to convict the one that has been accused; it cannot be founded on mere suspicion; it must be corroborative in fact and constitute evidence which stands the statutory and legal corroborative test. Evidence which relates exclusively to the fact of the commission of the crime and the circumstances thereof, as distinct from defendant's connection therewith, is not sufficient.

4. The requirement of M.S.A. § 634.04 that the testimony of an accomplice in crime must find support in and be bolstered by other corroborative evidence is based upon the theory that such testimony has been given by one admittedly corrupt and that it is likely to have been submitted in the hope of clemency.

5. The record does not indicate any testimony which may be properly classified as direct showing any attempt or effort on the part of the defendant to conceal himself or flee in order to avoid questioning or arrest which stands the statutory and legal corroborative test and justifies instructions and the court's charge on either concealment or flight.

6. An answer given to an impeaching question is not substantive evidence of the fact included in it. Its use is confined to a contradiction of the witness to whom the question is put and proof that a witness made statements inconsistent with his testimony merely discredits the witness and does not tend to prove the truth of the statements.

7. The record does not support the state's position that the defendant attempted either concealment or flight since there exists a lack of direct proof on those issues, nor does the evidence on which the state relies justify an instruction to the jury on the issue of concealment or flight. Manifestly, the state's position based upon the evidence as it now stands is both legally untenable and unsupported by authority.

8. Unless there is admissible evidence of facts or of circumstances from which the facts of concealment and flight may be inferred and to which the instruction on those issues may apply, it should not be given.

9. Held that the evidence submitted in the instant case does not justify an instruction on concealment and flight. Upon the state of the record it was highly prejudicial and sufficient in itself to make a reversal necessary.

Hvass, Weisman, Peterson, King & Schwappach, Minneapolis, for appellant.

Miles Lord, Atty. Gen., George M. Scott, County Atty., C. Paul Jones, First Asst. County Atty., and Bruce C. Stone, Asst. County Atty., Minneapolis, for respondent.

NELSON, Justice.

An information was filed January 20, 1956, in the District Court of Hennepin County charging the defendant, Barney McLaughlin, with unlawfully and feloniously committing the crime of kidnapping one Clarence E. Rick, in violation of M.S.A. §§ 619.34 and 610.12. It appears that the defendant is also known as Barney Edward McLaughlin and Bernard Edward McLaughlin. The defendant was thereupon tried and convicted. The judgment recites that the defendant, having been found 'guilty of the said crime of kidnapping,' is sentenced to confinement in the penitentiary until discharged by due course of law or by competent authority. Defendant appeals from this judgment.

The facts involved in this appeal are substantially as follows: Clarence E. Rick was manager of the Humpty-Dumpty grocery store located at 4805 Lyndale Avenue North, Minneapolis; Rick resided at 4505 Oakland Avenue South in Minneapolis. Rick left the grocery store which he managed on December 21, 1955, at approximately 10:15 p.m. and before doing so secured the doors and locked up the store. He was the owner of a 1955 Oldsmobile with a beige top which he drove home. It took him about one-half hour to travel the distance to his home. As the drove into his garage and proceeded to get out of his car, a man with a mask on stepped into his garage and said: 'Rick, get back in that car.' Mr. Rick was then compelled to drive his automobile, at the direction of the man who ordered him to do so, at the point of a gun. Mr. Rick drove as directed until he reached Fourth Avenue and 45th Street where he was instructed to stop. It appears that at that point Mr. Rick and his abductor were joined by another man. Rick was then instructed to get into the back seat and lie face down and to keep his eyes closed, the car continuing in the general direction of the Humpty-Dumpty store. Rick testified that during that time inquiry was made as to how much money he had in the store safe; that the second man who had joined Rick's abductor spoke in a Swedish accent. There is other testimony that he did not speak in a Swedish accent but appeared to change his voice at different times. Rick was driven to the store and, in front of it and while the car was still in motion, was questioned about which entrance could be used to enter the store. He was told by one of the abductors not to try to be a hero or make any break because they had him covered.

When they were about to enter the store, one of the abductors spoke up and said: 'There goes the patrol car.' The automobile with Rick in it was then driven around the block two times. Following this the auto stopped and Rick heard someone say 'What is going on here?' and then somebody said: 'Hi, Russ.' From this point on the record indicates confusion and a lot of activity. Rick testified that he was ordered to get out of the car by the first abductor, whom Rick later identified as Richard Paul Thompson. Rick sensed at that time that Thompson and he were surrounded by police officers who were attempting to apprehend his abductors and prevent a planned robbery of the store. Thompson, realizing he was surrounded, finally gave up his gun and surrendered to the police. Rick testified that prior to being intimidated at the point of a gun when he was abducted from his garage by Thompson, that as far as he could recall he had never known Thompson or heard his voice before.

One Donald N. Neuenfeldt, a Minneapolis policeman, appeared as a state's witness and testified with respect to his participation in the apprehension of Thompson and the liberation of Rick. He had been on duty with Russell E. Wasser, another police officer who worked with him as a partner on that evening. These officers were dispatched by radio to the area of the Humpty-Dumpty store and cautioned to look out for the Oldsmobile owned by Rick which they sighted in the vicinity of the store. Their testimony is that they got out of the squad car and that Neuenfeldt shouted 'What is going on here, who are you?' addressing his inquiry to the occupants of the Rick automobile. The testimony is that Neuenfeldt at that time saw another man approaching the Rick car from an alley; that he heard a remark made but does not know by whom and that remark was 'Hi, Russ.' Just then the Rick car started to move and later came to a halt in a snowbank. He testified that at that time some person came out of an alley near the store. The state now contends that the man was the defendant. Several rapid events occurred thereafter culminating in the final surrender of Thompson to the officers. However, the whereabouts of the man in the alley was not discerned and that man apparently had no other part in the events that occurred subsequent to the appearance of the police. Whatever claimed identification of this man coming out of the alley was made by the witness Neuenfeldt, it did not occur until five days after the capture of Thompson, Rick's original abductor. He first reported five days later in writing that the defendant was the person whom he saw coming out of the alley. At that time he described him as a man whom he saw coming out of the alley and who he thought was the defendant, as being about 150 to 160 pounds; that the man wore a three-quarter-length tan jacket and a ski cap with the earflaps down. The defendant's weight according to undisputed testimony when fully dressed was at the time 207 pounds and he was six feet, one inch tall and there is no testimony to dispute either him or his family in that respect; nor in that he wore a hat, not a ski cap with earflaps down, on the evening in question and a brown suede jacket, not three-quarter length, which belonged to one of his sons.

The other policeman and state's witness, Russell E. Wasser, who was a partner of Neuenfeldt's in apprehending Thompson and liberating Rick, it appears saw the same person coming out of the alley described by Neuenfeldt. Officer Wasser stated unequivocally that he could not say that the defendant was the man and further stated that he did not know if the defendant was the man. It appears that Officer Wasser had been a boxer and had on occasion boxed with and worked out with defendant in the gymnasium in the years past. He had also worked...