State v. Randall

• Citation: 173 N.W. 425,143 Minn. 203
• Decision Date: 03 July 1919
• Docket Number: No. 21284.,21284.
• Parties: STATE v. RANDALL.
• Court: Supreme Court of Minnesota (US)

143 Minn. 203

173 N.W. 425

STATE

v.RANDALL.

No. 21284.

Supreme Court of Minnesota.

July 3, 1919.

Appeal from District Court, Goodhue County; Willard L. Converse, Judge.

N. S. Randall was convicted of an offense declared by statute, and, from an order denying his motion for a new trial, he appeals. Order reversed.

Syllabus by the Court

The defendant was convicted of violating chapter 463, Laws 1917 (Gen. St. Supp. 1917, §§ 8521-1 to 8521-6), in a public address delivered on August 18, 1918, at Kenyon, Minn. The language employed is not essentially different from that spoken by Joseph Gilbert on the same occasion, resulting in his conviction, affirmed by this court (State v. Gilbert, 169 N. W. 790). Nearly all the errors assigned are identical with those assigned in the Gilbert Case, and are ruled by the decision therein.

The trial court should not attempt to limit the number of witnesses of a party upon the main controverted issue or controlling fact of a case, unless it becomes apparent that there is a purpose to trifle with the administration of justice. The main issue in this case was what defendant said on the evening in question, and it was prejudicial error to limit the number of his witnesses to 12 of the 27 he had produced to testify on that subject.

Defendant was entitled to repeat, if he could, all that he said on that occasion. George Nordlin, Frederick A. Pike, Arthur Le Sueur, and Thomas V. Sullivan, all of St. Paul, for appellant.

C. L. Hilton, Atty. Gen., and Thomas Mohn, of Red Wing, for the State.

HOLT, J.

Defendant, convicted of an offense under chapter 463, Laws 1917 (Gen. St. Supp. 1917, §§ 8521-1 to 8521-6), appeals from an order denying his motion for a new trial.

The indictment charged that on August 18, 1917, in the village of Kenyon, Goodhue county, Minn., in a public place where more than five persons were present, naming seven, defendant unlawfully and willfully taught and advocated by oral speech that men should not enlist in the military and naval forces of the United States, and that citizens should not assist in prosecuting the war with Germany, by then and there stating and expressing to the persons named in substance and effect as follows, to wit:

‘The rot that is being pulled off nowadays by our government with reference to this war is something so disgraceful that you have no idea of it. If the money of the rich were thrown into the war chest, this war would end immediately. We must save food for the Allies, they say; we must save food for them whether we get anything for ourselves. This is what makes high prices. The President of the United States has too much power in this country, and he uses it to suit himself.’

The sentences set out were uttered in the course of a public address, delivered by defendant to an audience of about 200 persons in the village of Kenyon, on the evening of the day mentioned. The meeting was for the purpose of promoting the Nonpartisan League and gaining it adherents. Defendant was an organizer and lecturer of the league. It was an open-air meeting, the speakers occupying a portable band stand some 10 feet from the sidewalk on the main street of the village. Mr. Gilbert and Mr. Martin, two other organizers or lecturers of the league, also spoke. Defendant spoke twice, the first time occupying about half an hour, and the last only a few minutes. Mr. Gilbert was also indicted, tried, and convicted of violating chapter 463, on account of his address on that occasion. The conviction was sustained on appeal. State v. Gilbert, 169 N. W. 790.

[1][2] The language which the indictment charges defendant with uttering is of a nature so similar to that set forth in the Gilbert indictment that it must be held to constitute an offense under the rule of that decision. The circumstances under which the language was used would as naturally lead to an inference of guilt in the one case as in the other. The main purpose of the speakers was no doubt to advance the cause of their own political organization and to advocate its principles. In aid of that purpose, it might be as proper as it is usual to decry rival political parties, including the one in power, and to criticize the methods employed by those in office from the lowest to the highest. But we think it was for the jury to say whether in so doing they, by making use of the language set out, in connection with their other utterances on that occasion, went too far and taught what chapter 463 forbids.

Following the decisions of State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918C, 304,State v. Townley, 140 Minn. 413, 168 N. W. 591, and State v. Kaercher, 169 N. W. 699, the opinion in the Gilbert Case construed the chapter in question and, as so construed, sustained it against the attack that thereby the right of free speech, guaranteed by the federal Constitution, was unduly curtailed. And section 3 thereof was upheld against the claim that it was not covered by the title of the act. It was also there decided that intent was not an ingredient of the offense created by chapter 463; that it was not error to receive evidence of remarks made by bystanders, nor to permit a witness to state the manner in which the accused made a statement (here testified to as given in a sneering manner, in the Gilbert Case as given in earnest); and that the objection was properly sustained to questions, asked the state's witness in cross-examination, whether they had taken any steps to prosecute defendant for his alleged seditious talk. These several propositions were raised in the Gilbert Case by the same counsel who appeared for this defendant and were as forcibly and ably presented by him then as now, but were resolved against him. We still adhere to the views expressed in the Gilbert Case; and that decision must therefore rule the instant case, unless prejudicial error be found in the assignments of error now to be considered.

After the state rested and defendant's counsel had made his opening statement to the jury wherein he indicated that 27 witnesses would testify that defendant did not say what he was charged with saying, the court announced that defendant would be limited to the testimony of 12 witnesses, including himself, as to what was said at that meeting. Counsel excepted, and announced that he had 27 witnesses present to testify, partly to the same facts and partly to an entirely different set of facts. Defendant took the stand, and called 11 other witnesses.

The authorities seem to be in accord on the proposition that the trial court may in the exercise of sound judicial discretion limit the number of witnesses as to any collateral fact or as to a given point in criminal as well as in civil cases. State v. Beabout, 100 Iowa, 155, 69 N. W. 429;People v. Casselman, 10 Cal. App. 234, 101 Pac. 693 (character witnesses); Commonwealth v. Thomas, 104 S. W. 326, 31 Ky. Law Rep. 899 (character witnesses); State v. Bowerman, 140 Mo. App. 410, 124 S. W. 41 (on impeachment of witnesses); State v. Lamb, 141 Mo. 298, 42 S. W. 827 (upon alibi). In Sheppard v. State, 120 Ark. 160, 179 S. W. 168, the court said it was within sound judicial discretion to limit the number of witnesses as to a particular fact, and to decide at what point to stop the introduction of cumulative evidence. We find no case holding squarely that on the main issue the court may limit the number of a party's witnesses, unless it be in Butler v. State, 97 Ind. 378 (a murder charge), where it is said:

‘If the court had no discretion in such cases, then the case might be indefinitely delayed, and an unlimited number of witnesses called. But for this rule courts would be subject to the caprice of counsel, and public good would * * * suffer. We agree that this discretion should be so exercised as not to impair the rights of a defendant, nevertheless it does exist. But as the power is a discretionary one, an appellate court can only interfere where it has been abused. If we can say from the record that the discretion has been abused, then we should review the ruling and reverse the judgment. This we cannot say, for the number of witnesses was limited to 45, and this, in itself, was not an unreasonable limitation.’

It may, however, be said that it does not clearly appear from the case as reported whether this restriction of the number of witnesses applied to those who could testify regarding the main issue. In Mergentheim v. State, 107 Ind. 567, 8 N. E. 568, a prosecution for maintaining a canal so as to constitute a nuisance, the court followed Butler v. State, supra, and held it proper exercise of judicial discretion to limit the number of witnesses as to the odor and condition of the canal. It was fixed at seven. The syllabus in Samuels v. United States, 232 Fed. 536, 146 C. C. A. 494, Ann. Cas. 1917A, 711, states:

‘It is within the discretion of the trial court to limit the number of witnesses a defendant charged with criminal offense may introduce on a single point in issue, and unless it appears clearly that there has been an abuse of discretion, which...