State v. R. J. C. Brown
| Decision Date | 07 March 1941 |
| Docket Number | 32,589 |
| Citation | 296 N.W. 582,209 Minn. 478 |
| Parties | State v. R. J. C. Brown |
| Court | Minnesota Supreme Court |
Defendant was convicted in the district court for Hennepin county of the crime of manslaughter in the first degree by the commission of an illegal abortion. He appealed from an order Arthur W. Selover, Judge, denying his motion for a new trial and from the judgment of conviction. Affirmed.
A. M Cary, Lena O. Smith, and Mark J. McCabe, for appellant.
J. A A. Burnquist, Attorney General, M. Tedd Evans, Assistant Attorney General, Ed J. Goff, County Attorney, and William G Compton, First Assistant County Attorney, for the State.
The opinion of the court was delivered by: Peterson
Evidence -- admissions -- by silence.
1. Silence under accusation permits an inference that the accused acquiesced in the statement and admitted its truth.
Homicide -- prosecution -- evidence -- dying declarations of victim of illegal abortion.
2. The dying declarations of the victim of a homicide, including a case where death results from an illegal abortion, concerning the facts and circumstances of the infliction of the fatal injury, are admissible upon the trial of the person charged with having committed the homicide, where it appears that the declarations were made when the victim was about to die and that she believed at the time of making them that death was imminent and there was no hope of recovery. The fact that the declarant was about to die and believed that death was imminent and there was no hope of recovery is essential as a predicate for the admission of such declarations.
Certain declarations considered and held admissible under the rule.
Defendant was convicted of the crime of manslaughter in the first degree committed by performing an abortion upon a girl from which she died. He appeals from the judgment of conviction and from an order denying his motion for new trial.
The only assignments of error relate to the admissibility of certain declarations of the girl.
The girl was admitted to the General Hospital in Minneapolis on August 10, 1939. She was then critically ill from an abortion which had been recently performed on her. Her father came to see her on the 12th. He sent for a priest, who administered to the girl the last rites of the Roman Catholic Church.
Declarations of the girl made on August 14, 16, and 22 were received in evidence. All were taken at the hospital. The first was taken on the 14th by a policewoman aided by a stenographer. After the notes had been transcribed the policewoman took the typewritten statement to the girl and read it to her. The girl signed it with a cross. It was not shown that she had stated or had been told that death was imminent when she made the statement, which was taken down in shorthand, or when she signed it in typewritten form.
The next statement was taken early in the morning of August 16. The girl was then in a very critical condition. The attending physician told her that she was about to die. He testified that she made no response to that statement; that she answered all questions coherently and that the policewoman had taken notes of what transpired. Another doctor also testified that he heard the doctor tell her that she was going to die and that she made no direct response. The policewoman testified with the aid of her notes that the doctor asked the girl if she realized that she was "very seriously ill" and if she knew that she was "going to die" and that she answered "yes" to both questions. The girl then stated that on July 31 the defendant performed an abortion on her for which she paid him $25; that she remembered her statement of the 14th; that it was true in all particulars except the one that she did not know who caused her pregnancy; that the fact with respect to that matter was that one Schmidt was the guilty party; and that he arranged to have the abortion performed and gave her the money with which to pay for it.
Another declaration was made at about 11 o'clock in the forenoon under the following circumstances. The policewoman and a police officer went to defendant's office with a "forthwith subpoena" issued by the county attorney commanding defendant to appear forthwith at the latter's office. Defendant went with them without objection. The three then went to the girl's bedside in the hospital. The girl stated that the defendant was the man who performed the abortion, and she repeated the substance of the previous statement in his presence. Defendant leaned forward and asked the policewoman, "What is this all about?" She replied, "Well, you must understand that we were questioning her about an abortion that you performed." To this defendant made no reply. After they left the room and were in the hall, defendant asked the police officer, "What is this all about?"
The defendant was taken to the county attorney's office, where he was asked what he knew about the case. He replied that he did not remember the girl having been in his office. The evidence is that he was then placed under arrest.
The last declaration was made on the 22nd. The attending physician was then of the opinion that she would die in from 24 to 48 hours. She had been placed in an oxygen tent because of difficulty in breathing. The doctor told her that she was going to die. She replied, "I am going to die sometime." Several times she repeated that she would not tell a lie. The doctor told her again that she was about to die, but she made no response to that statement. She again declared that defendant had performed the abortion on her and stated the circumstances thereof.
Defendant conveniently groups the statements into two classes. He contends that the statement of the girl in his presence and the other occurrences at the hospital during the morning of August 16 relate to admissions by conduct consisting of a justified silence on his part because he was then under arrest and that, since the statements were not addressed to him, there was no occasion for his answering them. The other statements were received as dying declarations, which defendant contends was error because they were made without the requisite foundation that the girl spoke in the belief that death was impending and that there was no hope of recovery.
The claim is that there was no evidence of any kind that the statements on the 14th were made in the belief of impending death and that hope of recovery was gone.
The contention that the statement made early in the morning of the 16th was without sufficient foundation is based upon the testimony of the doctors, one of whom testified that she did not respond when he told her that she was about to die, and the other that he did not recall her answering him directly. Their testimony is said clearly to outweigh the policewoman's testimony that the girl responded "yes" when the doctor told her that she was about to die. Both the policewoman and the doctor testified that the former made notes at the time.
The statement of the 22nd is objected to because the girl stated in response to the doctor when he told her that she was going to die, "I am going to die sometime," which it is contended shows that she did not then believe that death was imminent.
1. Silence under accusation permits an inference that the accused acquiesced in the statement and admitted its truth. State v. Graham, 176 Minn. 164, 222 N.W. 909; State v. Kerr,162 Minn. 309, 202 N.W. 727; State v. Findling, 123 Minn. 413, 144 N.W. 142, 49 L.R.A.(N.S.) 449 (); State v. Quirk, 101 Minn. 334, 112 N.W. 409; 2 Dunnell, Minn. Dig. (2 ed. & Supps.) § 3420.
Defendant contends that the rule is inapplicable here for the reasons that he was under arrest at the time the statements were made and that the statements at the hospital called for no response from him since they were not addressed to him. There is high authority for the proposition that the mere fact of arrest renders inadmissible a defendant's silence in the face of accusatory statements made in his presence and hearing. The arrest is deemed to place such restraint on the accused as to destroy the basis for an inference of acquiescence by silence or failure to controvert. Annotation, 80 A.L.R. 1262.
Likewise, there is respectable authority for the proposition that the defendant's silence is not acquiescence where the statements are not addressed to and hence do not call for an answer from him. 2 Wharton, Criminal Evidence (11 ed.) § 660. This like the preceding one is an open question in this state.
This case does not come within either rule invoked by the defendant. He was not under arrest when the statements in question were made. The evidence is that he was not placed under arrest until after he was questioned at the county attorney's office. The court below gave him the benefit of the rule that a failure to deny an accusation is not to be deemed an acquiescence therein by a defendant who is under arrest by instructing the jury that the statement was not to be considered if defendant was under arrest when the statement was made. Implicit in the verdict of guilty is the proposition that if the jury considered the statement it found that defendant was not under arrest when it was made or that it did not consider the statement if he was then under arrest. The Massachusetts court, which follows the rule invoked by defendant in the similar case of Commonwealth v. Morris, 264 Mass. 314, 162 N.E. 362, 363, held that the defendant was not under arrest within the rule where he went with two police officers at their request to a hospital where the victim of the abortion lay, for purposes of identification, and that the statement of the victim that the defendant performed the...
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