State v. De Pauw
| Citation | 74 N.W.2d 297,246 Minn. 91 |
| Decision Date | 30 December 1955 |
| Docket Number | No. 36659,36659 |
| Parties | STATE of Minnesota, Respondent, v. Leo J. DE PAUW, Appellant. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court.
1. In prosecution for the crime of committing indecent assault and taking indecent liberties upon the person of a female child 9 years of age, it was not error to receive in evidence the testimony of 4 other children between the ages of 8 and 9 to the effect that the defendant had committed similar and identical indecent assaults and taken identical indecent liberties with and on the person of each of them at the same place or house, evidencing a common pattern, scheme, or plan.
2. Evidence examined and held sufficient to sustain defendant's conviction.
Peterson, Karigan & Schneider, Minneapolis, for appellant.
Miles Lord, Atty. Gen., George M. Scott, County Atty., Per M. Larson, Asst. County Atty., Minneapolis, for respondent.
Defendant was accused of having committed the crime of indecent assault in violation of M.S.A. § 617.08 on the person of a 9-year-old girl. It is unnecessary to go into the procedural history with the exception of noting that the case was appealed to this court from a prior conviction, State v. DePauw, 243 Minn. 375, 68 N.W.2d 223, and a new trial was granted because of prejudicial statements made by the prosecuting attorney in the closing argument to the jury. In that case there was testimony that defendant had taken indecent liberties with and on the person of 3 other children between the ages of 7 and 9. No issue was raised on that appeal as to the admission of direct testimony as to similar offenses committed upon children other than that charged in the indictment.
At a retrial of the case 4 children other than Marcia J. Knight and her sister Gail Knight, ranging between the ages of 8 and 9, testified that defendant had taken indecent liberties with and on their person, similar to the occurrences related by members of the Knight family. Such acts were similar even if independent and disconnected acts and followed a pattern occurring from a few months to less than a year of the time when the defendant took indecent liberties with Marcia Knight. The defendant was again convicted at the retrial and then moved for a new trial on the grounds that the testimony as to other offenses was inadmissible and that allowing it was error and prejudicial to the extent of depriving the defendant of his right to a fair trial. He assigns as error on his second appeal: (1) That the trial court erred in allowing in as evidence testimony of children other than the complainant as to other similar but disconnected acts by the defendant upon them; (2) that the trial court erred in charging the jury that they should consider the evidence as to other offenses only in determining the plausibility or possibility of defendant having committed the act charged in the indictment; and (3) that the trial court erred in refusing to grant the defendant a new trial.
We do not deem it necessary to give a detailed summation of the evidence as the only question involved in this case is whether the defendant was denied the right to a fair and impartial trial because of the admission of the evidence of which he complains, that is, with respect to other children testifying as to similar acts committed upon them.
All of the alleged acts constituting indecent liberties took place in one and the same house, namely, the DePauw house where the defendant lived. The testimony of all the children involved leads to the conclusion that the defendant followed a common pattern with children living in the immediate neighborhood, children who played with the defendant's adopted son and who were admitted into the DePauw house from time to time. The evidence indicates a method and type of indecent liberties, all seemingly related to each other in motive, identity, scheme, and plan.
The state relies in the main upon State v. Sweeney, 180 Minn. 450, 231 N.W. 225, 73 A.L.R. 380, and cases bearing upon similar situations which have been decided by this court. In that case this court discussed the rule regarding the reception of evidence of similar acts or crimes--and exceptions to the rule--and stated in part (180 Minn. 455, 231 N.W. 227):
The last two exceptions dealt with in the Sweeney case are applicable here. It is not in the instant case a question of establishing the propensity to commit the crime nor the identity of the defendant. The evidence involves acts criminal in their nature so related to each other that proof of one or more tends to establish the accusation. There is no difficulty in reaching the conclusion, from the evidence, that the defendant followed a common pattern of similar acts and conduct, amounting to a common scheme or plan, in committing the particular acts as shown by the record and that these come within the evidentiary exceptions set forth in the Sweeney case. We have here pursuit of the same method, in the same place, with similar acts committed upon small children between the ages of 8 and 9.
The general and well-established rule in criminal cases in this state is that evidence which in any manner shows or tends to show that the accused has committed another crime independent of that for which he is on trial is inadmissible, and we hold to that rule, subject to the exceptions set forth in State v. Sweeney, supra, which are found applicable to the particular facts of the case at bar. State v. Bock, 229 Minn. 449, 39 N.W.2d 887; City of St. Paul v. Greene, 238 Minn. 202, 56 N.W.2d 423, 40 A.L.R.2d 812; State v. Thompson, 241 Minn. 59, 62 N.W.2d 512. Other cases may be cited without going into any extended recital of excerpts therefrom which fully establish the application of the exceptions herein contended for by the state. See, State v. Schueller, 120 Minn. 26, 29, 138 N.W. 937, 938; State v. Shtemme, 133 Minn. 184, 186, 158 N.W. 48, 49; State v. Haney, 219 Minn. 518, 18 N.W.2d 315; State v. Monroe, 142 Minn. 394, 398, 172 N.W. 313, 315; State v. Ettenberg, 145 Minn. 39, 43, 176 N.W. 171, 172; State v. Yurkiewicz, 212 Minn. 208, 210, 211, 3 N.W.2d 775, 776; State v. Hacker, 153 Minn. 538, 191 N.W. 37; State v. Friedman, 146 Minn. 373, 178 N.W. 895, rehearing denied 146 Minn. 380, 184 N.W. 272.
In State v. Haney, supra, this court confirmed the general application of the rule stated in State v. Sweeney, supra, which we have held to be...
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