State v. Ronk
| Citation | 91 Minn. 419 |
| Decision Date | 05 February 1904 |
| Docket Number | Nos. 13,707 - (21).,s. 13,707 - (21). |
| Parties | STATE v. BERT RONK.<SMALL><SUP>1</SUP></SMALL> |
| Court | Supreme Court of Minnesota (US) |
Morgan & Meighen and C. N. Andrews, for appellant.
W. B. Douglas, Attorney General, H. L. Bullis, County Attorney, and Frank E. Putnam, for the State.
Bert Ronk was accused of the crime of murder in the second degree in an indictment charging, with appropriate averments of scienter, that he shot and killed Charles Eberlein, at Brush Creek, on March 17, 1903. He was brought to trial at the June term of the Faribault county district court for that year, and convicted of manslaughter in the first degree. Upon a bill of exceptions settled by the trial court, there was a motion for a new trial, which was overruled. From this order, defendant appeals.
The bill of exceptions does not contain all the evidence or proceedings, but such portions only as are considered material to the contentions urged for defendant; and it is insisted that it conclusively appears therefrom, with the clerk's minutes in connection with affidavits presented on the motion to settle the bill of exceptions, that there were errors in the selection of the jury and the orders of the court during the trial which legally prejudiced defendant's rights.
When the case came on for trial, a jury was regularly impaneled and sworn, the state proceeded to present its evidence, and several witnesses were examined, when one of the jurors (J. H. Allen) became sick. There was an adjournment on this account. When the trial again proceeded, the sickness of the juror continued, and other adjournments were had, when, to quote from the bill of exceptions,
The defendant being present with his attorneys, the juror Allen appearing to be so seriously sick as to be unable to perform his duties as a juror, * * * the defendant consents that such juror * * * be permanently excused, that a new juror be called to take his place, and that the trial proceed with the present jury.
The following order was then made by the court and entered in the clerk's minutes:
In the case of State v. Bert Ronk, accused of murder in the second degree, and now upon trial on that charge, and the jury having been impaneled, and considerable testimony having been taken, * * * and it appearing to the satisfaction of the court that one of the jury is sick and unable to perform his duties as a juror, and that there is no probability that he will be able to resume his duties within a reasonable time, it is ordered that he is hereby excused from further attendance * * * upon this trial.
A special venire for ten jurors was then issued and delivered to the sheriff. The eleven jurors remaining on the panel were excused until three o'clock of the same day. The sheriff returned the venire with ten persons whom he summoned thereon, when
It was agreed by the parties that the challenges should be tried by the court. One Chris Steiner was sworn to answer as to his qualifications, when he was challenged peremptorily by defendant. S. C. Sandon, of the venire, was then called. No challenge was interposed by the accused or the state, and he was accepted and sworn as a juror in the case. The panel being thus completed, the court excused the jury until the following Monday at ten o'clock.
On the return of the jury at the time named, all the jurors originally sworn, except Allen, excused, with Sandon in his place, were present, and the trial proceeded. The eleven jurors originally accepted were not resworn, and, from the course of the trial as appears from the return, it is apparent that the state again recalled all the witnesses who had been previously examined, with the exception of two, to whom reference will be made, and that the evidence thereafter received tended to sustain the offense for which defendant was convicted.
It is now urged in behalf of defendant that the procedure thus adopted in filling Allen's place, and for the resumption of the trial, was illegal and in violation of the constitutional rights of defendant, who was thereby denied a trial by a fair and impartial jury. This claim is based, first, upon the ground that the return of the presiding judge, showing that the defendant consented to the course adopted, was not in accordance with the facts as they actually occurred; and, second, that, conceding the defendant did so consent, his rights are not affected thereby, but he may on this review avail himself of any objections to the final formation of the jury who returned the verdict, to the same extent as if he had remained mute, and the court's order had been made without his affirmative approval.
Defendant tendered what was claimed to be a correct copy of the clerk's minutes taken during the trial, which contained no mention of the alleged acquiescence of defendant in the course pursued, and insisted that this should be adopted as the authenticated report of the proceedings at the trial. The court was not satisfied with the completeness of this statement, and incorporated therein, on motion of the state, as an amendment, the defendant's assent to the discharge of the juror Allen, and his agreement to proceed with the eleven jurors already sworn. On the hearing to settle the bill of exceptions, there was a dispute between counsel as to these facts. Counsel for defendant offered a number of affidavits in connection with the transcript from the clerk's minutes embracing the order of the court from which we have quoted, to show that the return, as offered, should have been signed and certified by the judge, who declined to adopt the bill proffered, but certified the return as amended; and it is now seriously insisted that, notwithstanding such authenticated return of the court, we should consider these affidavits, and treat as an original proposition the question whether the disputed facts on such issue are proper for review here, and, if not found to accord with the return, that we either act upon the real facts in that regard as we find them to be, or order a new trial upon the ground that the return is not correct. This is certainly a novel proposition, presented for the first time in this court.
The claims of the defense in this respect, carried to their legitimate conclusion, would authorize this court, on a review in error, to determine upon ex parte affidavits the proceedings and evidence, in every respect, occurring at the trial, upon a showing by proofs that are very unsatisfactory, and at best must be delusive and misleading. We are unable to countenance such an unheard-of procedure, whereby it is thus attempted to delegate to this court original jurisdiction beyond its authority. We can no more hear and determine upon affidavits what were the transactions at the trial in such a case, than we could decide upon such showing the result of evidence submitted to a court or jury. A very cursory glance at any volume of judicial reports in this country will indicate the universal rule, resting upon necessity, that appellate courts are limited in their consideration of returns to such facts as are certified by the presumably impartial trial judge who heard the cause.
The experience of the members of this court at the bar, as well as on the bench, justifies the opinion, which is, we believe, shared generally by the members of the legal profession, that the only authority to be depended upon for an accurate return of the proceedings upon appeal is the presiding judge. In all matters of controversy regarding the proceedings which are to be reviewed, there must be some final arbiter, as well as an end to such controversy, before it comes here for review. The appellate court cannot know what transpired at the trial, and therefore cannot amend a case which should first have been settled. From the very nature of the subject, and the necessities involved in a determination of such issues, this power and duty have been imposed upon the judge who tried the cause, who is better qualified for its performance than any one else. The statute on this subject provides that the accused, after trial, may allege exceptions to the opinion, direction or judgment from which he appeals,
"Which exceptions, being reduced to writing in a summary manner and presented to the court any time before the end of the term or at any special term thereafter which the court may designate for such purpose, and being found conformable to the truth of the case, shall be allowed and signed by the judge." G. S. 1894, § 7390.
This is the only way provided for by which alleged errors can be presented to us, and we cannot do that which would, in effect, be to change the essential verity which belongs to the certified return of the judge who tried the cause. The high opinion which we entertain of the integrity and impartiality of the learned judge who heard the cause will not permit the suspicion that the defendant, in this respect, has been deprived of that fair report which the judges of original jurisdiction are universally willing to give when an examination of their orders is questioned on review.
It is but proper to say in this connection that it appears from the memorandum of the trial judge that the adopted amendment is an exact transcript from the court stenographer's minutes, and conformable to its recollection of the facts, and we have no right to doubt its accuracy. The minutes of the clerk of the court did not contain the amendment, but the clerk was not required to enter the same. Evidence of witnesses or the remarks of the court are seldom recorded by the clerk, and not required to be; and it follows, as a matter of law, that, whenever it is material to include important facts occurring at the trial in the authenticated return, the...
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