State v. Ryan

• Decision Date: 29 June 1923
• Docket Number: No. 23346.,23346.
• Citation: 156 Minn. 186,194 N.W. 396
• Parties: STATE v. RYAN et al.
• Court: Minnesota Supreme Court

156 Minn. 186

194 N.W. 396

STATE

v.RYAN et al.

No. 23346.

Supreme Court of Minnesota.

June 29, 1923.

Appeal from District Court, Ramsey County; C. C. Haupt, Judge.

John C. Ryan and others were convicted of attempted robbery in the first degree, and they appeal. Affirmed.

Syllabus by the Court

The fact that articles offered in evidence in a criminal prosecution against the owner thereof were taken by officers of the law, without a search warrant, from the house where the accused had resided but which he had abandoned when he filed to another state to avoid the consequences of the crime with which he was charged, does not render such articles inadmissible as evidence.

Upon an appeal from a conviction of attempted robbery, where the record does not contain all the evidence, this court cannot determine whether the testimony fails to disclose a conspiracy so as to warrant the reception of proof of other crimes.

Record examined and found to contain no reversible error in the rulings upon the admissibility of evidence, the charge, nor in the conduct of the prosecuting attorney.

Whether searches and seizures are unreasonable depends upon character of the articles procured and the circumstances under which they are obtained. Drill & Drill, of St. Paul, for appellants.

C. L. Hilton, Atty. Gen., Jas. E. Markham, Asst. Atty. Gen., and Harry H. Peterson, Co. Atty., and Allan M. McGill, Asst. Co. Atty., both of St. Paul, for the State.

QUINN, J.

Defendants were indicted jointly, charged with attempted robbery in the first degree, committed at 4 o'clock in the morning on July 17, 1922, at the Park Theater, in the city of St. Paul. Ryan pleaded guilty. Freeman was tried and convicted. The appellant O'Loughlin was tried and the jury returned a verdict of guilty, with a recommendation for clemency. He was 24 years of age and a reformatory sentence was imposed. There in no settled case. The appeal is upon a bill of exceptions.

The block in which the Park Theater is situated is bounded on the north by Dayton avenue, on the east by Snelling avenue, on the south by Selby avenue, and on the west by Fry street. The theater is about 150 feet west from Snelling, facing south on Selby. June 16, 1922, appellant rented from Mrs. Shugard, a small, furnished dwelling at 1725 Iglehart, within a few blocks of the theater, paying her rent therefor to July 16. The defendant Ryan, his wife, Julia Churchill, and appellant occupied this place until the morning of July 17. They had therein their wearing apparel and other personal belongings, also shotguns, revolvers, knives, tools, and the like, thereafter found and taken by the officers without process and by them turned over to the county attorney.

There is no controversy over the facts surrounding and leading up to the commission of the offense charged in the indictment, except as to the connection of the appellant therewith. Ethan Allen was on duty as a police officer at the theater on the night in question. He was armed with a revolver and a sawed-off shotgun loaded with buckshot, and remained in the theater after the show closed. At about four o'clock in the morning he heard talking outside and some one trying to effect an entrance into the theater through one of the doors. As the door opened and one of the bandits entered, the officer commanded him to throw up his hands. The bandit turned and ran, the officer in close pursuit. When out on the sidewalk the officer saw two of the bandits running east on the sidewalk toward Snelling and one running west toward Fry street. With his sawed off shotgun he shot at the two going east, and Ryan fell, hit above the knee, the bone in his leg being broken. He was armed at the time with a revolver and a loaded shotgun. The other man continued his flight into the darkness.

Officer Allen testified that just before he fired he heard a shot, and the bullet whiz by him, and at the time he fired he thought he heard a second shot fired by some other person, but that he was not certain from which direction they came. At about that time a squad of detectives appeared at the northwest corner of the theater block, where they saw a man whom they pursued and quickly apprehended, lying on the ground at the rear of a building. He proved to be the defendant Freeman. He also was armed with a revolver and a shotgun. Midway between the southwest and the northwest corners of the theater block near the curb on the east side of Fry street was a stolen Studebaker car with its lights burning and in it were tools commonly used by safe-breakers. One of the detectives testified that while pursuing Freeman he saw the appellant with his right arm pressed to his side as though he had been hurt. It is conceded that appellant appeared at the Iglehart house between 4 and 5 o'clock that morning with nine shot wounds in his body and right arm; that his arm was broken; that he was bleeding profusely; that at the time of his arrival there Julia Churchill was alone in the house; that she bandaged him as best she could, then called a cab and they went together to Minneapolis and later in the day boarded a train for Milwaukee, at which place appellant first had his wounds dressed by a physician; and that later he was arrested and brought back to Minnesota.

After appellant left the Iglehart house on the morning of July 17, the officers went there in search of a clue. Ryan and Freeman were in prison; Ryan's wife was not to be found; the appellant and Julia Churchill had left for another state. None of them ever returned to the Iglehart house. Under these circumstances, the officers entered the house through an open door, without a search warrant, and took therefrom the articles offered in evidence as Exhibits N to Y. The rooms were upset and out of order. There was no one in the house at the time the officers entered. Prior to his trial appellant procured an order requiring the county attorney and police officers to show cause why the articles referred to as Exhibits N to Y should not be restored to the owners. Upon hearing the court denied the motion and dismissed the order. At the trial the state offered in evidence these exhibits, to which appellant objected upon the grounds that no sufficient foundation had been laid, that the same had been obtained in violation of appellant's constitutional rights and in violation of law, and were incompetent, irrelevant, and immaterial; it not appearing that any of such articles were used in connection with the commission of the offense charged.

At the time of renting the Iglehart house appellant gave his name as Gordon, said he was married, and that he was engaged in the hotel advertising business. These statements were not true. Coincident with appellant's renting this house began a series of thefts and robberies in the vicinity characterized by their similarity of accomplishment. On June 18, a stolen Nash car was found. In it was a sawed-off axe. After the theater was broken into a handle which fitted the axe was found in the Iglehart house. Mrs. Shugard testified that it was her axe and that the...