State v. Wassing
| Decision Date | 22 November 1918 |
| Docket Number | No. 20,980.,20,980. |
| Citation | 141 Minn. 106 |
| Court | Minnesota Supreme Court |
| Parties | STATE v. O. M. WASSING.<SMALL><SUP>1</SUP></SMALL> |
His motion for an order requiring the state to make the indictment more definite and certain or, in case of the denial of the motion, for an order requiring the state to furnish him with a bill of particulars, was denied by Jelley, J. Defendant's demurrer to the indictment was overruled. Defendant was tried before Jelley, J., and a jury which found him guilty as charged in the indictment. From the judgment entered pursuant to the verdict and from an order denying his motion for a new trial, defendant appealed. Affirmed.
Mead & Bryngelson and A. H. Hall, for appellant.
Clifford L. Hilton, Attorney General, John M. Rees, County Attorney, and Walter H. Newton, First Assistant County Attorney, for respondent.
Defendant was convicted of the crime of carnal knowledge of a girl under 18 years of age. A motion for new trial was made and denied and defendant appeals.
1. Defendant's counsel argue earnestly that there is not sufficient evidence to sustain a verdict of guilty. We have examined the evidence with much care. The only direct evidence for the state is that of the prosecutrix herself. This is usually true in such cases. Her testimony gives her alleged relations with defendant in much detail. Prosecutrix was the daughter of defendant's friend. Her father introduced her to defendant and they occasionally met. She testified that defendant made advances to her and finally committed the offense charged, at a place in Minneapolis known as the Frances Hotel. She testified that one similar offense preceded the one on which the prosecution is based and several others followed. Her testimony as to these facts was given and adhered to without much wavering.
Her testimony is corroborated at some points. It appears that prosecutrix had difficulties at home. On two occasions she took money and left home. Her father had her committed to the State Girls Home School at Sauk Center. While she was being detained for that purpose she sent for defendant. He asked to see her alone. As they were separating there is evidence that defendant was overheard to say: "Good-bye, Sid, you know enough now to keep your mouth shut, don't you?" There is some other corroboration, perhaps slight, and it may be observed that no motive appears for untruthfully charging herself with this delinquency or defendant with this offense.
Defendant contradicted her story in toto. Other witnesses contradicted her as to various details of her story. For example the keeper of the Frances Hotel, whom she says she saw there, denies seeing her. While she was detained as a witness on the eve of the trial she escaped and went to the home of the mayor of Minneapolis. Several witnesses testified that while there she said that she was trying to escape so as not to testify against defendant; that she did not want to testify against him and had been threatened with discipline if she did not tell her story in court; that promises were made to her of favors if she would tell the story, and that she had been persistently drilled in her story. There is no evidence, however, that she ever said that the story of her relations with the defendant as told in court was not true.
There was other impeaching testimony. We have examined it all with care. The testimony in such a case should be scrutinized with care especially when corroboration is not direct, for direct testimony in defense other than that of defendant is naturally difficult to obtain. We are of the opinion that the contradiction and impeachment were not such that this court can say that her story was inherently improbable or unbelievable, that the question of the defendant's guilt or innocence was for the jury to determine, and the evidence is sufficient to sustain their verdict.
2. Defendant asked for this instruction:
Some of this language is proper enough and some of it is not. The court did impress upon the jury the importance of the case. He admonished them to "fully, fairly, candidly and conscientiously consider, analyze and weigh * * * all the evidence" in the case, to "sift" it and "scrutinize it," "to contrast the probability or improbability, the reasonableness or unreasonableness, of their stories * * * and * * *" take these things into consideration "in correctly weighing their testimony." He charged them in substance that if the prosecutrix had been impeached, and the impeaching testimony was "sufficient to discredit her testimony here and to show that she is unreliable or unworthy of belief" then if she was not corroborated it was within their province to disregard her testimony and in such event it would be their duty to acquit, and that if she had testified falsely as to any material fact in the case they might disregard her entire testimony except as it was corroborated by other credible testimony. He might well have told them that the charge made was of a kind "difficult to prove if true" and "extremely difficult to defend against, even if utterly untrue," State v. Trocke, 127 Minn. 485, 149 N. W. 944, but this would not have added much to what he did say. But the vice in the requested instruction was the broad general statement in it that "if the testimony of the complaining witness is not corroborated" the jury would be justified in refusing to convict. The jury could only understand from this that, although they considered her story true, they would be justified in refusing to convict, because only of lack of corroboration. This is not the law in this state. A conviction may stand on the uncorroborated testimony of the prosecutrix. State v. Trocke, supra. The court properly refused this instruction.
3. The indictment was in the usual form charging commission of the offense on or about March 1, 1917, at the city of Minneapolis, Hennepin county, Minnesota. The state claimed several acts of intercourse. On the opening of the trial defendant moved the court to require the state to elect "on which acts of * * * claimed intercourse it proposes to rely." The court refused to do so. The state made its election at the conclusion of its testimony. After much deliberation this court held that whether the state should be required to make an earlier election rests largely in the discretion of the trial court. State v. Schueller, 120 Minn. 26, 138 N. W. 937; State v. Roby, 128 Minn. 187, 150 N. W. 793, Ann. Cas. 1915D, 360; State v. Shtemme, 133 Minn. 184, 158 N. W. 48. Defendant urges that this rule is wrong and should be abrogated. It appears to us that it is calculated to facilitate justice and does not work injustice to the defendant.
4. Before the trial defendant moved the court for an order requiring the state to make the indictment more definite and certain stating "the time of the day if possible," the "day of the month if possible," the place by street and number, and "such other circumstances as may be within the possession of the state, which will inform the defendant definitely as to what he has to meet," and moved for a bill of particulars stating substantially these things. This motion was denied. If an indictment is so general that it fails to give the defendant adequate notice of the charge he is expected to meet, the trial court should require a bill of particulars. 3 Wharton, Crim. Pro. (10th ed.) § 1637. The propriety of such requirement depends upon the facts and circumstances of the case. 2 Bishop, Crim. Pro. § 643; State v. Davis, 39 R. I. 276, 97 Atl. 818, Ann. Cas. 1918C, 563; State v. Carter, 188 Ill. App. 22. The matter rests largely in the discretion of the trial court. Had the court required the state to give the defendant the particulars demanded in this case and to confine its proof thereto, it is plain that this would have been much more exacting than a requirement to make an election. It was not error to deny this motion.
5. Defendant's counsel argues with much earnestness that the result in this case of following the rules of law heretofore laid down by this court was to make it impossible for defendant to properly prepare his defense, but that since the trial he has ascertained that he can prove an alibi on the dates on which the state relies and asks for a new trial on that ground. Prosecutrix was unable to definitely fix the date of the offense charged. She identified it as the day she made a deposit in a bank. Defendant after the trial obtained from the bank the dates of all deposits made, contended that her other testimony and certain undisputed facts eliminate all except two, namely, January 16 and February 1, 1917, and then produced proof of an alibi on those two days. The alleged new evidence would some of it have been admissible if produced on the trial. But it is quite...
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