State v. Schifsky
| Decision Date | 11 February 1955 |
| Docket Number | No. 36283,36283 |
| Citation | 243 Minn. 533,69 N.W.2d 89 |
| Parties | STATE of Minnesota, Plaintiff, v. Anthony SCHIFSKY, Defendant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In trial for assault in the second degree under M.S.A. § 619.38, where it was necessary to establish that the arresting officers acted upon reasonable cause, testimony by the officers that they received radio messages stating that the defendant had a gun and had threatened to shoot his wife and that the defendant's wife also told them this, when introduced for the sole purpose of proving the fact that the statements had been made to them and the messages received by them and not for the purpose of proving the truth of the content of those statements and messages, and when so received by the court with proper instructions to the jury to that effect, is not hearsay evidence but is in fact primary and original evidence and its admission is entirely proper.
2. The admission of the officers' testimony concerning the wife's statements to them did not violate § 595.02, which provides that a husband or wife may not be examined for or against his or her spouse without the other's consent, since this section is intended to exclude testimony by one of the spouses as a witness against the other and not to exclude otherwise qualified testimony by a third party. Nor did the admission of this testimony violate that part of § 595.02 which provides that neither spouse during the marriage or afterward may without the consent of the other be examined as to any communication made by one to the other during the marriage since this was a statement made by the wife to the police officers and not a confidential statement between husband and wife.
3. A communication by the court with the jury in the absence of the defendant and his counsel constitutes error, but where the communication is in open court so that its nature is clearly known and where it affirmatively appears that the defendant could not have been prejudiced by it, no constitutional or statutory rights of the defendant have been violated, and the error, being harmless, is not a ground for reversal.
J. A. A. Burnquist, Atty. Gen., James F. Lynch, Ramsey County Atty., Richard B. Ryan, John P. Frank and Frederick O. Arneson, Asst. County Atty., At. Paul, for plaintiff.
John S. McGrath, Dennis D. Daly, St. Paul, for defendant.
The defendant was convicted of assault in the second degree in the Ramsey county district court. A motion for judgment notwithstanding the verdict or for a new trial was denied January 9, 1953. There has been no appeal from this order. On that date, however, the court stated that it would enter an order certifying certain questions as important and doubtful under M.S.A. § 632.10 as follows:
'1. Did the Trial Court Err in Admitting certain hearsay evidence such as allowing the deputy sheriffs who testified for the State to testify as to information they received by radio as transmitted to them by the Police Dispatcher from the Public Safety Building of the City of St. Paul, and also err in admitting certain hearsay evidence by the allowing of the playing of recorded records of such radio messages to be played in the court room by a person who was not the person who talked into said recording making said record, and other hearsay evidence all being admitted over the constant objection of counsel for the defendant, * * *.
'2. Did the Trial Court Err in the admission of hearsay declarations of the wife of the defendant, against the defendant in this case, this being a case wherein the defendant was being charged with a crime alleged to have been committed against a third person, namely, a deputy sheriff of Ramsey County, and not being charged with a crime against the said wife of said defendant; allowing the said declarations of said wife to be testified to by the deputy sheriffs who testified for the State over and above the constant objection of the defendant's attorney; * * *.
'3. Did the Trial Court Commit a Prejudicial Error by:
'a. Communicating with the members of the jury not in the presence of the defendant or his attorneys, while the defendant was incarcerated in the county jail in said case, after the jury had retired for deliberation, without notice to the defendant or the defendant's attorneys, or the State's attorneys, they all being readily available to the court:
'b. Was this a denial of the defendant's rights under the Constitution and the statutes wherein a defendant has an absolute right to be present at every stage of the trial of his case;
1. The record discloses that the radioed messages were as follows:
To the first squad car:
To the second squad car:
As to questions one and two, it is clear from the record that the testimony was not introduced to prove the truth of the matter stated but only to prove certain verbal acts for the purpose of showing that the deputy sheriffs, who were lawful peace officers, had reasonable cause to believe that a felony had been or was in the process of being committed and that therefore they could, as they did do, make an arrest of the defendant without a warrant.
The state contends that the radio directions from the police dispatcher, coupled with the agitated declarations of defendant's wife, clearly offered reasonable cause for the deputies' belief that the defendant had committed or was about to commit a felony and that the deputies were therefore justified in entering upon the defendant's premises to arrest him without a warrant. The trial court made it clear when the evidence was received that such testimony was offered only to show that such communications had in fact been made to them and not to establish the truth of anything contained in such communications, and the court charged the jury that, upon their receipt of radioed directions and hearing of the wife's declarations, these deputies were justified in their reasonable belief that defendant had committed a felony.
The hearsay rule applies only to such statements as are sought to be introduced to prove the truth of the facts stated, and it does not apply where the fact that a person not a witness has made a statement is relevant and the statement is introduced merely to prove the fact of its being made and not to prove the truth of what the communication contains. Of course, if the fact that a person not a witness made a statement is in issue, the statement is admissible. All facts in issue are admissible regardless of rules of evidence. 7 Dunnell, Dig. (3 ed.) § 3287; see, 22 C.J.S., Criminal Law, § 718; Lepak v. Lepak, 195 Minn. 24, 261 N.W. 484; Henslin v. Wingen, 203 Minn. 166, 280 N.W. 281; State v. Paun, 109 W.Va. 606, 155 S.E. 656; United States v. Siegel, D.C.D.Minn., 16 F.2d 134; Fitzpatrick v. Commonwealth, 210 Ky. 385, 275 S.W. 819; Coleman v. State, 43 Ga.App. 350, 158 S.E. 627.
We conclude that the evidence received under question one as certified was not received as hearsay evidence. It was in fact primary and original evidence used to show that the deputies had reasonable cause to believe a crime had been or was about to be committed and to arrest without warrant, and therefore the court did not err in permitting the recorded messages to be played before the jury. Section 629.30 states the authority of the deputies to arrest without a warrant. 1 Section 629.35 provides for arrests without a warrant to be made at night under certain circumstances. 2
The states has contended in its brief that the declarations of the wife were admissible to prove the truth of the matter contained in them because they come within the exception to the hearsay rule known as the Res gestae rule. The declarations were not admitted at the trial for this purpose. They were admitted only for the limited purpose described above, and the question certified to this court is whether their admission for that purpose was proper and not whether the Res gestae rule was applicable. In answering that question it is not necessary to consider the separate question of whether the Res gestae rule was applicable.
The statute authorizing the trial court to certify important or doubtful questions is not a substitute for appeal and does not raise the general question whether the evidence shows or proves the defendant guilty, which is reviewable on appeal from an order denying a new trial or from the judgment. State v. Dumas, 118 Minn. 77, 136 N.W. 311, 41 L.R.A.,N.S., 439.
2. The record further shows that certain declarations were made by defendant's wife directed to the deputies and not in the presence of the defendant, her husband, and testimony as to what she said to them is as follows:
'Her husband had a gun and had threatened to shoot her,' and
The information of the county attorney charged the defendant with assault in the second degree. 3
The defense contends that the declarations of defendant's wife to the effect 'Her husband had a gun and had threatened to shoot her,' and 'Her husband had a long gun,' and 'You must take him, he is out to get me,' are inadmissible by reason of the disqualification of the wife contained in § 595.02, insofar as here applicable:
'Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence, except as follows:
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