State v. De Pauw

• Decision Date: 07 January 1955
• Citation: 243 Minn. 375,68 N.W.2d 223
• Parties: STATE of Minnesota, Respondent, v. Leo DE PAUW, Appellant. No 36418.
• Court: Minnesota Supreme Court

Page 223

68 N.W.2d 223

243 Minn. 375

STATE of Minnesota, Respondent, v. Leo DE PAUW, Appellant.

No 36418.

Supreme Court of Minnesota.

Jan. 7, 1955.

Syllabus by the Court.

The evidence is sufficient to support the verdict of conviction, but substantial rights of the defendant were prejudiced by the quoted statements made by the prosecuting attorney in his closing argument to the jury.

Peterson, Karigan & Schneider, Minneapolis, for appellant.

J. A. A. Burnquist, Atty. Gen., Lowell J. Grady, Asst. Atty. Gen., Michael J. Dillon, County Atty., Per Larson, Asst. County Atty., Minneapolis, for respondent.

MAGNEY, Commissioner.

Defendant was convicted of the crime of taking indecent liberties with and on the person of a nine-year-old girl. He appeals from the order denying his motion for a new trial.

There was testimony that defendant had taken indecent liberties with and on the person of three other children between the ages of seven and nine. It is not necessary to detail the evidence any further as the only question involved in the case is whether the defendant was denied his right to a fair and impartial trial because of certain remarks made by the prosecuting attorney in his closing argument to the jury.

The first remarks to which an exception is taken are as follows:

'* * * Do you think that Marcia Knight (the prosecuting witness), and remembering her on the witness stand--do you believe she told the truth? Well, I do. I am absolutely convinced that Marcie Knight told the truth. Well then, members of the jury, if Marcia Knight told the truth, then this defendant didn't tell the truth.'

This court has already passed upon a similar statement and done so adversely to defendant's contention. In State v. Wassing, 141 Minn. 106, 113, 169 N.W. 485, 488, the state's attorney in the course of his argument to the jury said:

'* * * 'I believe every word that the girl has said, and believe it at the bottom of my heart, because she has no interest in the case."

This court there said:

'* * * Exception is taken to this. The objection is not well taken. As stated in People v. Wirth, 108 Mich. 307, 66 N.W. 41: 'We are not aware of any decision which holds that an attorney may not state to the jury his belief that a witness is or is not entitled to credence, in a case where the testimony is conflicting, and the result depends upon which witnesses the jury find are truthful. A broad latitude must be allowed in such cases."

The prosecuting attorney later on in the argument said:

'And so then here we have brought before you many children who have, according to their testimony, been violated by this man. Well, are the parents--what do you think? Here are the parents sitting around here. Here are the mothers sitting around here. What would you do if you found that your child had been violated? I know. I am not asking for the answer, but I know what you would do, and I know that you, too, who are fathers here, you would do the same thing. And you might also feel that you ought to do more than that. And I am not able to tell you, because it is evidence that I cannot get into evidence, but if I could bring it before you, (you) would learn something along that line too. But do you wonder that mothers are up in arms?' (Italics supplied.)

The nature of the charge against defendant is such that prejudice could easily be aroused. The charge itself arouses prejudice. Every normal person abhors this crime against children. In determining whether the remarks of the prosecuting attorney in his closing argument to the jury are prejudicial, consideration must be given to the nature of the charge itself. When the prosecuting attorney asks: 'But do you wonder that mothers are up in arms?', he has a basis for the question in the testimony of defendant himself when on direct examination he stated that, after his arrest, a police officer told him that several of the parents were up in arms. But just previous to this he asked this rhetorical question: 'What would you do if you found that your child had been...