State v. Roby
| Decision Date | 15 January 1915 |
| Docket Number | Nos. 18,900 - (6).,s. 18,900 - (6). |
| Citation | 128 Minn. 187 |
| Parties | STATE v. HARRY ROBY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
in the opinion. From an order denying his motion for a new trial, defendant appealed. Affirmed.
R. G. Anderson, M. E. Stone and Thomas Hessian, for appellant.
Lyndon A. Smith, Attorney General, John C. Nethaway, Assistant Attorney General, and George T. Olsen, County Attorney, for respondent.
Defendant was convicted of the crime of carnal knowledge and abuse of a female child between the age of 10 and 14 years. There is evidence sufficient to sustain the verdict. This is conceded, but defendant assigns several errors which he urges as ground for a new trial.
The complaining witness, when called by the state, testified to the commission of an offense, such as charged in the indictment, about May 20, and to a second offense of the same kind about June 2. Defendant at once asked the court to rule that the state by first introducing evidence of an act committed May 20 elected by implication to rely on that date as the true date. The court refused to so rule. It could make no difference whether there was an implied election or not. May 20 was the date upon which the prosecution finally proceeded and upon which the conviction was based. It is accordingly unimportant whether the state could have proceeded to judgment on a charge based upon any other date. It did not undertake to do so.
It is urged that, on a prosecution for an offense committed on May 20, evidence of a second offense committed June 2 was not properly in the case. The court was asked to strike out this evidence, and its refusal to do so is assigned as error. It is quite well settled that, in this class of carnal crimes, evidence of similar offenses committed prior to the date charged may properly be received. It is contended, however, that evidence of offenses subsequently committed is not admissible. This subject was considered in State v. Schueller, 120 Minn. 26, 138 N. W. 937. In view of the line of argument followed by the attorneys for the state, it is proper here to say that no significance is attached to the fact that the acts to which the evidence related all occurred prior to June 25, the date charged in the indictment. The significant date is the date upon which the state relies for conviction, and the question is whether it is proper to receive proof of acts subsequent to this date. In the Schueller case the subject is discussed with reference to the date charged "in the indictment," but in that case the date charged in the indictment and in the proof was the same. It was made clear in the Schueller case that the courts are divided on the question of the propriety of receiving proof of later offenses. It is there said, however, that "it may well be doubted whether there is any real or substantial basis for the distinction" between evidence of earlier and later offenses. Evidence of other offenses, when admissible at all, is received by way of corroboration of the main charge, and on the theory that the commission of other similar acts tends to show opportunity and inclination to commit the crime with which the defendant is charged. Presumption of continuance of a condition once shown to exist may enter into consideration, but it is not the controlling factor, and we think that evidence of subsequent acts within the limit of reasonable time may be received. We have no doubt that in a case of this sort, evidence of commission of an act of the same character within less than two weeks after the date of the act charged, would almost universally be given some corroborative effect in the minds of men unaccustomed to legal technicalities. Evidence of prior acts may have greater probative effect, but the difference is mainly a difference of degree.
2. Early in the trial defendant asked the court to require the county attorney to elect upon which date he would rely for conviction. The court refused to require an election until the close of the state's case. This is assigned as error. This question is disposed of in State v. Schueller, supra. The charge there was the same as here. There, as here, the trial court refused to require an election until the close of the state's case. It was held that a motion to require an earlier election was addressed to the sound discretion of the trial court and that its denial was not error. We adhere to the rule there adopted. A different rule may obtain in case of crimes so wholly unrelated that proof of other offenses is not properly in the case at all. We are not concerned with such cases here, and we make no decision in regard thereto.
3. The day before defendant was indicted, having employed counsel, he served upon the county attorney a notice in writing, in which he objected to the taking of any evidence of his wife "either before the grand jury or elsewhere or otherwise." After the state had closed its case, the county attorney asked permission to reopen it, and said: "I would like to call Mrs. Roby." Objection was made that she was incompetent. The court said: "She is competent, but she is excluded from testifying without his consent; if you do not consent to it, she cannot testify." Defendant's counsel again objected. The county attorney then said: "I guess that is true * * * as long as there is objection to it, she cannot testify because she is his wife." Thereupon defendant's counsel excepted to the offer as improper and prejudicial, and asked "that the jury be instructed as to that." It is contended the offer to call Mrs. Roby was such misconduct as to warrant setting aside the verdict of the jury. The statute provides that:
"A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent." G. S. 1913, § 8375, subd. 1.
We find great diversity of opinion as to the proper procedure where one party may desire testimony as to which the other party is entitled to claim privilege, and as to the right of comment by one party in case the privilege is asserted. Some courts permit comment in argument of counsel on the fact that the privilege has been exercised. Mercer v. State, 17 Tex. App. 452; State v. Brown, 118 La. 373, 42 South. 969; Hampton v. State,...
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