State v. Shtemme

• Decision Date: 02 June 1916
• Docket Number: 19,663 - (4)
• Citation: 158 N.W. 48,133 Minn. 184
• Parties: STATE v. GEORT SHTEMME
• Court: Minnesota Supreme Court

158 N.W. 48

133 Minn. 184

STATE v. GEORT SHTEMME

Nos. 19,663 - (4)

Supreme Court of Minnesota

June 2, 1916

Defendant was indicted by the grand jury of the crime of carnal knowledge of a female child, tried in the district court for Hennepin county before Jelley, J., who at the close of the testimony denied defendant's motion to dismiss the prosecution, and a jury which returned a verdict of guilty as charged in the indictment. From an order denying his motion for a new trial, defendant appealed. Affirmed.

SYLLABUS

Criminal law -- evidence of similar acts by defendant.

1. In the trial of defendant, indicted for the crime of carnal knowledge of a girl under the age of consent, it was permissible to show his conduct towards the prosecutrix, near to the time of the act upon which the state elects to rely for conviction, and it is not error if, in so doing, it incidentally appears that defendant, in the presence of prosecutrix, committed a like offense upon one of her companions, for that also may characterize his conduct and disposition towards prosecutrix.

Criminal law.

2. Likewise conduct of defendant which serves to corroborate the story of prosecutrix and shows his purpose, may be given in evidence, although such conduct also affects other girls in the company of prosecutrix.

Charge to jury -- failure of counsel to object in trial court.

3. The faults, such as they were, in the court's instructions were of such nature that attention should have been directed thereto before the jury retired, or else objections should have been assigned, in a proper manner, upon the motion for a new trial. Neither was done in this case.

John P Nash and William M. Nash, for appellant.

Lyndon A. Smith, Attorney General, John M. Reese, County Attorney, and Walter H. Newton, First Assistant County Attorney, for respondent.

OPINION

HOLT, J.

Defendant was convicted of the crime of carnal knowledge of a girl 13 years of age, named Viva. This appeal is from the order denying him a new trial.

No more of the details of the trial will be stated than is necessary to pass upon the errors assigned here.

Several acts with Viva were testified to, but finally the state elected to rely for conviction upon the one committed in the afternoon of February 7, 1915, at the two rooms where defendant and his nephew lived. Several young girls had acquired the habit of visiting these rooms, generally in company. After the act in question was committed in one of the rooms, Viva and Florence, together with the two or three other girls there left. They went to a picture show and came back to defendant's place in a couple of hours. Out in the small entry, and before permitting them to come into the rooms, defendant, in the presence of Viva and the other girls, exacted indulgence from Florence, according to the testimony of the girl named Rose. The question which elicited this fact was not objected to, but after the answer was given, the objection came that it was incompetent, irrelevant and immaterial. The court let the answer remain in the case. This ruling is assigned as error. The last question put to Rose on cross-examination was: "What did you all do while you were there -- sit around and talk?" Answer: "Yes, sir." Then on redirect the first question was: "What did you all do, counsel asked you. What was defendant doing with Florence?" It would seem the impression left by the cross-examination might justify the question asked on redirect. But upon broader grounds the testimony was proper. It is true, the state did not need prove intent as an ingredient of the crime in this case, but it was, nevertheless, proper to show defendant's conduct and purpose toward Viva. The act with Florence was in Viva's presence and, in a way, characterizes his conduct and disposition towards her also. State v. Sheets, 127 Iowa 73, 102 N.W. 415; Proper v. State, 85 Wis. 615, 55 N.W. 1035.

In like manner the testimony was properly received that defendant permitted these young girls. Viva being one of them, to drink beer and smoke cigarettes during their visits, and that he openly took liberties with them. It tended to prove the disposition of defendant and his purpose in having the girls come to his rooms, and corroborates the testimony of Viva as to the act of which he was found guilty. There can be no question that both prior and subsequent conduct in respect to Viva, reasonably near to...