State v. Saporen

• Decision Date: 26 May 1939
• Docket Number: No. 31889.,31889.
• Citation: 205 Minn. 358,285 N.W. 898
• Parties: STATE v. SAPOREN.
• Court: Minnesota Supreme Court

285 N.W. 898

205 Minn. 358

STATE v. SAPOREN.

No. 31889.

Supreme Court of Minnesota.

May 26, 1939.

Appeal from District Court, Hennepin County; Lars O. Rue, Judge.

Nathan Saporen was convicted of the crime of carnal knowledge and abuse of a female child under the age of 18, and he appeals.

Judgment reversed.

Neil Hughes, Don E. Morgan, and S. J. Kroman, all of Minneapolis (John Ott, of Minneapolis, of counsel), for appellant.

J. A. A. Burnquist, Atty. Gen., M. Tedd Evans, Asst. Atty. Gen., and Edward J. Goff, Co. Atty., and H. T. Van Lear and Per M. Larson, Asst. Co. Attys., all of Minneapolis, for the State.

STONE, Justice.

Convicted of the crime of carnal knowledge and abuse of a female child under the age of 18, defendant appeals from the judgment and from the order denying his motion for a new trial.

The picture of lechery disclosed by record and argument need not be redrawn. On the question of defendant's guilt (which he has stoutly denied from the first) there is plenty of evidence to support the verdict. The main question for the jury was doubtless one of identification, which was resolved against defendant.

The point decisive of this appeal arises from the state's impeachment of its own witness, one B. J. Sekerman. The date of the offense, as fixed by the state's evidence, was November 2, 1937; the place, room 201 of a boarding house in Minneapolis. Sekerman was called by the state in rebuttal. After preliminary questions, he was asked whether he had seen the prosecuting witness in room 201. He answered that he had. Asked again for the date of the morning that he saw her there, he answered, "* * * I think it was in October, the last part of October." Asked again whether he would say it was not November 2, he answered, "Yes."

At this point assistant county attorney Van Lear claimed surprise. Persuading the court that such was the case, he was given leave to impeach the witness. He did it by reference to a previous unsworn statement, by way of question and answer, procured by a probation officer with the assistance of a stenographer. The statement itself was not put in evidence. But Sekerman was asked not only whether in that statement he had not fixed the time of the occurrence as November 2, but also whether at that time the landlady of the rooming house had not complained to him about some disorderly conduct of a "man and a girl in room 201". Persisting, the state showed that the witness had declared that he had seen defendant "come downstairs in a hurry and leave the building," followed immediately by the complaining witness. Another declaration from the statement was one that the defendant had stated to the witness that a maid had "caught" defendant and the girl (the prosecutrix) in the room and "run them out".

The witness admitted having made the statement but claimed that he was under the compulsion of "force" in doing so. He testified that the force consisted of threats of seven years in the reformatory if he refused. The inference was that the effort of his examiners was to get defendant implicated.

It should be emphasized that, at the juncture where the state claimed surprise and thereon got permission to impeach, the witness had given no testimony adverse to the state except that some then unidentified occasion was late in October rather than November 2. He had not at that point said anything about defendant, nor had he suggested that defendant was or was not in the hotel on November 2. Notwithstanding the state was permitted to cross examine not only as to date, but also as to the presence of both prosecuting witness and defendant at the precise place and almost at the very moment of the crime.

That is not all. Re-direct examination for the state went not at all to any discrepancy as to date, but proceeded in detail over that part of the statement identifying defendant as the man present in the room with the prosecuting witness at the determinative moment.

The story of the impeachment is not yet complete, for the state put on the probation officer who procured the statement and the stenographer who recorded and transcribed it. Each of them was interrogated and answered favorably to the state concerning the whole statement. The testimony was not confined to any mere question of time. The fact stressed by the state was not that the witness formerly dated some occurrence as of November 2, rather than late in October, the time given by him on the stand. The witnesses testified inclusively as to the declarations which had been made by Sekerman to them, untested by cross examination and unvouched for by oath, identifying defendant as the guilty man.

1. In case of genuine surprise, while there are some jurisdictions holding otherwise, the right of a party, subject to the court's discretion to impeach his own witness is pretty well settled. The books carry no better discussion of the origin, evolution, and rationale of the rule than that of Mr. Justice Blume in Crago v. State, 28 Wyo. 215, 202 P. 1099. Selover v. Bryant, 54 Minn. 434, 56 N.W. 58, 21 L.R.A. 418, 40 Am.St.Rep. 349, discarded the former doctrine that the party calling a witness so far vouches for his credibility as to bar his impeachment. See Dunnell, Minn.Dig. (2 ed. & Supps.) § 10356.

There is normally the preliminary question for the trial judge whether the claim of surprise is well founded in fact. His decision thereon will not be disturbed unless abuse of discretion appears. The ruling allowing impeachment of Sekerman was made on the bare assertion of the assistant county attorney. See State v. Jensen, 151 Minn. 174, 186 N.W. 581. He had the question and answer statement of the unsavory witness. It was for the trial judge to determine whether the asserted and naive lack of suspicion of a change of heart by Sekerman was well founded. (He had pleaded guilty of a crime similar to that charged against defendant.)

2. The rule is well settled that the only office of impeaching testimony of this kind is to negative or neutralize the testimony to which it is directed. (It may also discredit the witness as such.) 28 R.C.L. 645; Rosted v. Great Northern Ry. Co., 76 Minn. 123, 78 N.W. 971; Pullen v. Chicago, M., St. P. & P. Ry. Co., 178 Minn. 347, 227 N.W. 352. That is what Dean Wigmore calls the orthodox and "universally maintained" rule of American decision law. Although approved in the first (§ 1018), it is disapproved in the second edition of Wigmore, Evidence (§ 1018). The disapproval of the learned author is put upon the ground that the impeached witness testifies finally under oath and subject to cross examination. Hence he concludes, "The whole purpose of the Hearsay rule has been already satisfied," and so "there is nothing to prevent the tribunal from giving such testimonial credit to the extra-judicial statement as it may seem to deserve."

That, we submit with deference, is not enough to qualify the previous contradictory assertion as substantive evidence. The oath of the witness solemnizes his former extrajudicial statement not at all. It goes only to his testimony which is occasion for and target of the impeachment. The previous statement was when made and remains an ex parte affair, given without oath and test of cross examination. Important also is the fact that, however much it may have mangled truth, there was assurance of freedom from prosecution for perjury.

The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood rather than truth.

There are additional practical reasons for not attaching anything of substantive evidential value to extrajudicial assertions which come in only as impeachment. Their unrestricted use as evidence would increase both temptation and opportunity for the manufacture of evidence. Declarations extracted by the most extreme of "third degree" methods could readily be made into affirmative evidence. In criminal cases the defendant would have a similar opportunity to entrap the state's witnesses, and use as evidence all their extrajudicial assertions. The same enlargement of the field of inquiry would result in civil cases.

If presence of the witness in cour...