State v. Rickmier
| Decision Date | 24 October 1919 |
| Docket Number | 21,324 |
| Citation | 174 N.W. 529,144 Minn. 32 |
| Parties | STATE v. JOHN RICKMIER |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury of Waseca county charged with the crime of grand larceny in the second degree tried in the district court for that county before Childress J., who at the close of the testimony denied defendant's motion for a directed verdict and a jury which found him guilty as charged in the indictment. From the order denying his motion for a new trial and from the judgment of conviction, defendant appealed. Reversed.
Indictment -- endorsement of witnesses' names.
1. Where the grand jury in good faith eendorsed on the indictment the names of the witnesses, upon whose evidence it is asserted the indictment was found, the indictment will not be set aside because of the claim that other witnesses were examined. It must be conclusively presumed that the indictment was found on the evidence of the witnesses named.
Grand larceny -- evidence.
2. The evidence is sufficient to sustain the verdict that the defendant stole property in excess of the value of $25 and that therefore the crime was grand larceny in the second degree.
Criminal law -- circumstantial evidence -- charge to jury.
3. In a criminal prosecution founded on circumstantial evidence, except that the state claims an admission of guilt by an offer of the defendant, after indictment, to return the property alleged to have been stolen if the trouble were dropped, all of which is in dispute, the defendant is entitled to a charge on circumstantial evidence.
Fred W. Senn and Joseph N. Moonan, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Assistant Attorney General, and Henry M. Gallagher, County Attorney, for respondent.
The defendant was convicted of grand larceny in the second degree upon an indictment charging him with the stealing of two pigs of the value of $40, the property of one Deverell, and he appeals.
1. At the foot of the indictment were the names of five witnesses sworn and examined before the grand jury. The defendant moved to set aside the indictment and made a showing that his sister was examined as a witness before the grand jury. Her name was not upon the indictment. The court denied the motion and this ruling is assigned as error. The two sections of G.S. 1913 relevant upon this contention are as follows:
The defendant urges that these two statutes together made it mandatory upon the court to set the indictment aside. These statutes have been on the books for many years. They have not often been before this court.
In State v. Beebe, 17 Minn. 218 (241), it was held that the affidavit of a grand juror will not be received to impeach the conduct of the grand jury by proving the making of a false endorsement.
In State v. Hawks, 56 Minn. 129, 57 N.W. 455, it was held not necessary to endorse the names of witnesses, who, while other charges were being investigated, may have given evidence material to the charge alleged in the indictment. The court said that the object of the statute was, first, to prevent malicious accusations being made by unknown and secret prosecutors, and, second, that the accused may to some extent be informed what witness he will have to confront at the trial. It was intimated that the omission is one which may be supplied by amendment. The court referred to the "absurdity" of setting aside an indictment on this ground when the very fact of his making such a motion conclusively shows that the defendant already has the very information which the endorsement was designed to furnish him, and it was held that all that the statute requires is that there be endorsed the names of those witnesses who were examined and gave material evidence upon the investigation of the particular charge upon which the indictment was found, and upon whose evidence it was found, and that where the grand jury endorsed only the names of those witnesses who were examined in the investigation of the particular charge against the defendant when it was under consideration "it must be conclusively presumed that the indictment was found exclusively on the evidence of such witnesses."
If there is to be such conclusive presumption in that sort of a case, we see no reason why the same conclusive presumption should not obtain in any case where the names of witnesses are in fact endorsed.
These statutes must be given effect according to their meaning. If the names of no witnesses are endorsed, the statute clearly requires that the indictment be set aside. But suppose 100 witnesses were examined and one was omitted from the endorsement. Is it the intent of this statute that the omission should be fatal to the indictment even though the testimony of the omitted witness was in fact immaterial? Or would the court be required to institute an inquiry to determine the materiality of the evidence of the omitted witness? It seems to us that neither result is contemplated by the statute. In the investigation of a crime many witnesses must of necessity be called who in fact give no consequential testimony. We do not think that the statute means that an indictment is fatally defective where the grand jury in good faith endorses the names of the witnesses whose testimony is considered material and omit the names of immaterial witnesses from the endorsement. Such good faith is always presumed. As held in the Hawks case the statute requires the endorsement only of the names of material witnesses and when the grand jury in good faith performs this function, and endorses the names of the witnesses upon whose testimony it asserts the indictment was found, "it must be conclusively presumed that the indictment was found exclusively on the evidence of such witnesses."
The views just stated are those of a majority of the court. Justice Quinn and the writer do not concur in them. The argument is made with force, and with authority to support it, that the words "shall in all cases be inserted," in section 9132, requiring the endorsement of the names of the witnesses, are directory, and it is convenient to consider them so; but in their opinion the words, "shall be set aside," in section 9180, stating the result which shall follow from a failure to observe the requirement of section 9132, are a command of the legislature which the courts should obey, and it seems to them that, if the legislature should now seek to express its intent that the indictment should in fact be set aside when the names of witnesses are not in fact endorsed as required, they hardly could use words more apt to express their intent than those which are now held insufficient.
2. We reach the conclusion that the evidence sustains the verdict. Deverell had two red pigs which he kept in a pen on his premises in the outskirts of Waseca. There is evidence tending to prove the following facts: The pen was inclosed with a hog tight woven wire fence. On the afternoon of September 28, 1918, the members of the Deverell family were absent from home. The gate had been left closed. When the family returned in the evening the gate was closed but the pigs were gone. Five weeks later it was discovered that defendant had two red pigs in a pen on his premises a block away. Deverell obtained a search warrant and with the deputy sheriff examined the pigs. He testified that they were his. He said they answered the description of his pigs. In size one was a little larger than the other and this was true of his. He claimed he recognized one by a peculiar scar or ringmark on the nose and said that from seeing them so often he got familiar with their appearance, and, without being able to explain how he could distinguish his own from others of the same kind, he still could do so. The defendant refused at the time of the search to tell where he got the pigs. On the stand he claimed that he bought them from a stranger to him, though he had seen him before, and who had them crated and in his wagon for sale in town, and who trusted him for a part of the price. He concealed the pigs from his sister, with whom he lived, for a week or more. She insisted on his bringing to her the man from whom he bought them and he claimed that he did so. There is some evidence that he concealed the pigs from others and that he told persons who knew of his having them to tell nobody. There is some evidence, not very satisfactory, that he tried to trade them off to a farmer for other pigs. There is a claim that after the indictment he acceded to a suggestion that he let Deverell have the pigs if the prosecution be stopped. The defendant denied the taking, gave evidence of a purchase of...
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