State v. Smith

Decision Date29 September 1922
Docket Number22,809
Citation190 N.W. 48,153 Minn. 167
PartiesSTATE v. CARL B. SMITH
CourtMinnesota Supreme Court

Defendant was indicted by the grand jury of Ramsey county charged with the crime of subornation of perjury, tried in the district court for that county before Catlin, J., and a jury and found guilty as charged in the indictment. From an order denying his motion for a new trial, defendant appealed. Affirmed.

SYLLABUS

Question of guilt one for the jury.

1. A careful examination of the evidence shows that it was sufficient to make the question of defendant's guilt a question for the jury.

Indictment for subornation of perjury sufficient.

2. An indictment for subornation of perjury which states that the false testimony was given at the trial of a designated civil action, in a designated court, at a designated time and place, sufficiently identifies the subject matter in respect to which the offense is claimed to have been committed.

Allegation that perjurer was sworn sufficient.

3. A statement that the perjurer was induced to become a witness and to be duly sworn, and, on his examination as a witness duly sworn to testify the truth, gave the false testimony set forth, shows sufficiently that he was sworn.

Indictment not invalid because some assignments of perjury are insufficient.

4. If any of the assignments of perjury are sufficient, the indictment is not invalid because others are insufficient.

Indictment sufficient which complies with statutory requirements.

5. An indictment for perjury or subornation of perjury which complies with the requirements of the statutes is sufficient although it may not comply with the requirements of the common law. State v. Nelson, 74 Minn. 409, insofar as it may be deemed an authority for a different rule is disapproved.

Indictment sufficient under the statute.

6. The indictment in question is sufficient under the statute which provides that "no indictment shall be insufficient * * * by reason of a defect or imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

Evidence admissible on question whether attorney knew testimony was false.

7. Where an attorney called the perjurer as a witness at three trials and he gave substantially the same false testimony at each of these trials, and the attorney is charged with subornation of perjury in procuring him to give such false testimony at the third trial, evidence as to the testimony given at the preceding trials was admissible for its bearing on the question whether the attorney knew the testimony to be false when it was given at the last trial.

Evidence not inadmissible because tending to prove another crime.

8. That such evidence may have tended to prove the commission of another crime did not render it inadmissible.

Statements of attorney's accomplice admissible, when.

9. Where the evidence tends to show that the attorney and another acted in concert in procuring the perjurer to give the false testimony, the statements of such other in furtherance of the joint purpose are admissible.

Admissibility of telephone conversation within discretion of court.

10. Admitting testimony as to an alleged conversation with defendant over the telephone was within the discretion of the trial court.

Refusal of court to allow second attorney's argument to jury sustained.

11. When the argument to the jury on behalf of defendant had been made and closed by one attorney for defendant, it was within the discretion of the court to refuse to permit a further argument by another attorney.

Refusal of new trial correct.

12. It was also within the discretion of the court to refuse a new trial on the ground of newly discovered evidence of an impeaching character.

Charge to jury.

13. The charge was full, clear, impartial and correct.

S. J. Levy, T. J. Newman, O. G. Wondra and L. C. Smith, for appellant.

Clifford L. Hilton, Attorney General, and R. D. O'Brien, for respondent.

OPINION

TAYLOR, C.

The defendant was convicted of the crime of subornation of perjury and appeals from an order denying a new trial.

The record is lengthy as the trial occupied two weeks, and it may conduce to brevity and clearness to mention first some of the undisputed facts in the order in which they occurred.

In the latter part of August, 1920, Marguerette Z. Craighead employed the Sheridan, Sweeney & Kerst Detective Agency to shadow her husband, A. W. Craighead, and an operator named Lawrence E. Tatro was detailed to perform this service.

Tatro found Craighead and William E. Stonebraker riding together in an automobile on the afternoon of Saturday, August 28, 1920, and trailed them to the St. Michael Apartments in the city of St. Paul, and so reported to Mrs. Craighead late that evening. On Sunday, August 29, 1920, Craighead, Stonebraker and Stonebraker's father, mother and aunt started for the lakes near Alexandria for an outing and drove in the Stonebraker automobile from St. Paul to Sauk Center, more than 100 miles distant, where they remained Sunday night. When Tatro undertook to resume his duties on Sunday, he was unable to find either Craighead or Stonebraker. He hired a taxicab and drove about the city and to White Bear Lake and back, but failed to find any trace of them. Notwithstanding this, he went to the office of the detective agency Monday morning and reported to Sheridan, the manager, that he had shadowed Craighead and Stonebraker throughout the entire day and evening of Sunday, and pretended to describe their movements and doings in detail. Among other things he stated that they drove in an automobile from the city of St. Paul to White Bear Lake, and that they met two women at a cottage at the lake whom they brought back to Craighead's apartment in the city of St. Paul, where the four remained for some hours. His entire story concerning Craighead and Stonebraker was a pure fabrication, for he had not seen either of them at any time on Sunday and knew nothing of their movements or doings. Sheridan notified Mrs. Craighead of Tatro's report, and she, accompanied by her sister, went to his office, where Tatro's story was repeated to her. At her instance Tatro accompanied her and her sister to the office of the assistant city attorney and repeated the story to him.

An action for divorce brought by Eleanor Stonebraker against William E. Stonebraker in which defendant Smith was attorney for the plaintiff came on for trial November 18, 1920. On information given by Mrs. Craighead, Smith subpoenaed Tatro as a witness. Tatro was not known to Mrs. Stonebraker, had not been employed by her, and apparently knew nothing of her or of her affairs until the subpoena was served on him. He appeared in obedience to the subpoena, was sworn as a witness and told the same story on the witness stand which he had related in August to Sheridan, Mrs. Craighead and the assistant city attorney. In the latter part of October, 1920, A. W. Craighead brought an action for divorce against his wife, Marguerette Z. Craighead, and Smith defended this action as her attorney. It came on for trial in the latter part of February, 1921, and Smith called Tatro as a witness who repeated in substance the story he had told in the Stonebraker case, but added the statement that after Craighead, Stonebraker and the two women had gone to Craighead's apartment, Craighead went away alone and returned an hour or so later.

On March 11, 1921, Tatro was indicted for perjury in his testimony given on November 18, 1920, at the trial of the Stonebraker case, and on March 14, 1921, Smith appeared as his attorney and entered a plea of not guilty, for him. He was placed in jail, but on the morning of March 15, 1921, was released on bail procured by Smith. A new trial had been granted in the Stonebraker case and it came on for trial the second time on March 15, 1921, the day on which Tatro was released on bail. At this trial Smith again called Tatro as a witness and he repeated in substance the story he had told at the Craighead trial. On April 23, 1921, Tatro was again indicted for the crime of perjury committed at this second trial of the Stonebraker case, and on April 25, 1921, entered a plea of guilty thereto, was sentenced to the state prison and is serving his term. On June 10, 1921, defendant Smith and Marguerette Z. Craighead were jointly indicted for subornation of perjury in procuring Tatro to give the perjured testimony at the second trial of the Stonebraker case. Smith was tried separately and the jury returned a verdict of guilty. The term defendant when used hereafter will refer to him.

Defendant contends that the verdict is not sustained by the evidence. That Tatro's entire testimony concerning the movements and doings of Stonebraker and Craighead on Sunday, August 20, 1920, was false was not controverted at the trial and stands admitted. The ultimate question of fact in dispute was whether the defendant procured Tatro to give this false testimony knowing it to be false. He stoutly insists that he did not know it to be false at the time it was given, and was assured by Tatro it was true.

At the trial Tatro was brought from the state prison and testified to the effect that on the morning of November 18, 1920 immediately after he was subpoenaed and before he had testified at the first trial of the Stonebraker case, he went to defendant's office, where he had an interview with defendant and Mrs. Craighead, in which he informed defendant that the story which he had told concerning Stonebraker and Craighead was not true, and objected to testifying to it for fear he would be arrested, and that defendant and Mrs. Craighead persuaded him to give the false testimony to aid Mrs. Stonebraker...

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