State v. Smith

• Decision Date: 02 January 1894
• Citation: 57 N.W. 325,56 Minn. 78
• Parties: STATE v. SMITH.
• Court: Minnesota Supreme Court

56 Minn. 78

57 N.W. 325

STATE

v.SMITH.

Supreme Court of Minnesota.

Jan. 2, 1894.

(Syllabus by the Court.)

1. The rule laid down in State v. Lautenschlager, 22 Minn. 514, that whether a trial court will allow questions preliminary to a challenge to be put to a person called to sit as a juror in a criminal case, as to his qualifications, is purely a matter of discretion, adhered to and applied in a case where nothing further appeared in the record than that the defendant had exhausted all of her peremptory challenges when her counsel attempted to ask such questions.

2. Rulings of the trial court as to the admissibility of certain evidence offered in behalf of the prosecution discussed and disposed of.

3. Held, that there was no evidence introduced in the trial of this case-which resulted in a verdict of murder in the third degree-reasonably tending to reduce the crime of murder, in one of its three degrees, to manslaughter in either of the degrees defined in the Penal Code, and hence that the trial court did not err when declining to charge the jury as to the different degrees of manslaughter.

Appeal from district court, Ramsey county; Brill, Judge.

Annie M. Smith was convicted of murder, and, a new trial having been denied, she appeals. Affirmed.

W. W. Erwin, for appellant.

H. W. Childs and Pierce Butler, for the State.

COLLINS, J.

The defendant, indicted for the crime of murder in the first degree, was convicted of murder in the third degree, which, according to the Penal Code, is the inexcusable or unjustifiable killing of a human being, perpetrated by an act eminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual, or, without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony, either upon or affecting the person killed, or otherwise. From an order denying a motion for a new trial, she appealed. Her counsel has very properly arranged his assignments of error into four distinct groups and has so argued them. They will be considered in the same manner.

The first four relate to the rulings of the trial court whereby defendant's counsel was refused permission to put preliminary questions to several of the persons called while the jury was being impaneled, as to their qualifications, without first interposing a challenge, and in allowing the prosecuting attorney to promptly admit these challenges; and also in not permitting the defendant to withdraw challenges when made under these circumstances, and after they stood admitted by the state. Undoubtedly, the court below, when making these rulings, acted on the authority of State v. Lautenschlager, 22 Minn. 514, in which it was held that this matter of allowing preliminary interrogatories to be put to a person brought to the jury box, as to his qualifications to serve as a juror, is purely discretionary with the court, and that whenever a challenge is interposed by either party, and admitted by the other, there is nothing to try, and the person challenged must stand aside. But it is contended by counsel that under all the circumstances of the present case, and in connection with other rulings of the court while the jury was being selected, the rulings in question were so unjust and oppressive as to amount to an abuse of discretion. We are not advised as to what other rulings counsel thus refers to, but it is impossible to distinguish the circumstances relating to this point in the case from those attending the Lautenschlager Case, except that it did not appear there, as it does from the record here, that counsel's request to ask questions without first challenging was made, in two instances, after he had exhausted all of the peremptory challenges allowed to defendant by statute. We are fully satisfied that the rule above stated, laid down by this court in 1876, and which has since prevailed without legislative change or modification, is practical, sound, and just, and that it should not be departed from at this time for the reason, solely, that at the time it was adhered to and followed in the trial court the defendant had exhausted all of her peremptory challenges. There is nothing whatever in the record to indicate that the defendant was prejudiced by these rulings, or that the two jurors selected after she had used all of her peremptory challenges were not wholly impartial. She had no right to select any particular persons as jurors to try her case, and, nothing appearing to the contrary, it is to be presumed that these jurors were impartial. State v. Kluseman, (Minn.) 55 N. W. 741.

The fifth assignment of error relates to testimony received as to what Hennig, a codefendant, did with the body of the deceased after this defendant left the scene of the homicide. It was shown on the trial that the title to the premises, a small tract of land bordering on a lake, was in Mrs. Smith, and that Hennig and herself resided in a house built there by the former. Both were present when Hoppe, the deceased, was shot. The body fell into shallow water, and Mrs. Smith then ran to the house, a short distance, and from there went to the office of a justice of the peace. Soon after she left the shore of the lake Hennig went into the water, and dragged the body a few rods, to a point opposite the premises of another person; and proof of these facts was objected to by defendant's counsel. We need not discuss the contention of counsel for the state that, for several reasons which they present, this testimony was relevant and competent. Its admission could not have prejudicedthe defendant under any view of the case. Again,-and this indicates what her counsel really thought of it at the time,-Hennig was called as a witness for the defense, and, in response to inquiries made on the direct examination, fully detailed the circumstances, and all he did with the body after Mrs. Smith absented herself.

By the sixth and seventh assignments it is urged that the trial court erred when permitting the state to put certain signs or notices to trespassers in evidence, without any testimony tending to connect the defendant with them, and also erred when refusing to allow the character of the community to be shown in explanation, by a cross-examination of the officer who removed these signs or notices from the land, and produced them in court. In respect to these signs or notices, which indicated great hostility towards trespassers, it is enough to say that for months prior to the homicide they had been stuck or nailed up on premises owned and occupied by defendant, and the presumption was that she knew all about them. That she did know about them, and had caused the most threatening of the number to be painted and put up, was afterwards shown by her own testimony, without objection. If there was a valid objection to the introduction of these signs and notices in evidence it was not that suggested by counsel. The testimony sought to be elicited from the officer, as to the character of the community in which these signs and notices were put up, was clearly inadmissible, because he had not been examined on any subject which would warrant any such cross-examination.

We now come to a consideration of the last group of assignments of error. It is argued with great force and ability, by the distinguished counsel for the defendant, that the court committed serious error when failing to instruct the jury as to the different degrees of manslaughter. No request to so instruct was made, but upon the conclusion of the charge an exception was entered up-the ground and because the court had omitted any instruction in respect to the several degrees of the crime of manslaughter. No complaint is made that the law in relation to the crime of murder in its different degrees was not fairly and completely covered, or that the court, in its charge, was otherwise derelict. Under an indictment for murder, a conviction may be had for any of the lesser degrees of the crime, and, without expressly so determining, we assume that...