State v. Padares
| Decision Date | 13 January 1933 |
| Docket Number | 29,165 |
| Parties | STATE v. GEORGE PADARES |
| Court | Minnesota Supreme Court |
Defendant was convicted in the district court for Hennepin county of the crime of arson in the second degree. He appealed from the judgment of conviction and from an order Guilford, J. denying his motion for a new trial. Affirmed.
Criminal law -- motion for new trial -- newly discovered evidence -- counter affidavit.
1. The district court has power to waive its rules and receive a counter affidavit after a motion is submitted. While the practice pursued is not commended, no prejudice resulted, for the lack of a showing of due diligence to obtain the alleged newly discovered evidence required a denial of the motion for a new trial on that ground.
Criminal law -- reception of evidence -- review.
2. Where evidence is received without objection or objections are withdrawn, no error can be assigned on its reception on appeal.
Criminal law -- accomplice -- testimony connecting accused with crime -- corroboration.
3. It is held that the testimony of the accomplice is sufficiently corroborated connecting defendant with the crime of arson of which he was convicted.
Robertson & Rerat and A. S. Dowdall, for appellant.
Henry N. Benson, Attorney General, James E. Markham, Deputy Attorney General, Edward J. Goff, county Attorney, and William G. Compton, Assistant County Attorney, for the state.
Defendant was convicted of arson. After judgment his motion for a new trial was denied. He appeals from the judgment and the order denying a new trial.
Defendant's wife was the owner under a contract of purchase of a lot and two houses in Minneapolis, Minnesota. The large house fronted on Park avenue and the small one on Fifteenth street. Insurance on the small house in the sum of $5,000 was carried and $3,000 on the contents. About midnight on February 20, 1930, a fire occurred in the small house. It was extinguished, but considerable damage was done to the building and contents. Defendant, his wife, and one Ernest Garlick were jointly indicated charged with arson in setting the fire. Garlick pleaded guilty. Defendant and his wife were tried separately. The wife was acquitted.
Complaint is made of misconduct, accident, and surprise. A large part of the brief is devoted to this assignment of error. It grows out of the fact that the motion for a new trial was grounded in part upon alleged newly discovered evidence, based upon the affidavit of one Tony K. Manthis. A counter affidavit was filed and received by the court four days after the motion was submitted, and apparently without notice to defendant. This was contrary to the rules adopted by the district court, which provide that affidavits shall be filed the day before the day of hearing of a motion. But the trial court had the power to waive the rule. However, the practice here pursued is not in the interest of that fair play which should characterize prosecutions for crime. A defendant is entitled to know what is presented to the court in refutation of his contention. In this case, however, the showing of due diligence to secure the testimony of Manthis is wholly lacking, and the proposed newly found testimony is of apparently so little value that the court was well within its discretion in denying the motion for a new trial on the ground of newly discovered evidence.
The errors of law assigned relate to questions put to witnesses for the state during the first part of the trial concerning what defendant's wife did. The court ruled out testimony as to what she told defendant Garlick, but allowed the latter to testify that Mrs. Padares gave him the key by which he entered the house to set the fire. After the taking of the testimony in behalf of the state proceeded a little further, defendant's attorney stated:
"Your Honor, in order to save time, I will withdraw the...
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