State v. Wassing
| Decision Date | 22 November 1918 |
| Docket Number | No. 20980.,20980. |
| Citation | 141 Minn. 106,169 N.W. 485 |
| Parties | STATE v. WASSING. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hennepin County; Charles S. Jelley, Judge.
O. M. Wassing was convicted of carnal knowledge of a girl under 18 years of age, his motion for new trial was denied, and he appeals. Affirmed.
The evidence in this case is sufficient to sustain the verdict of guilty.
On trial of an indictment for the crime of carnal knowledge of a girl under 18 years of age, it is not error to refuse to instruct the jury that if the testimony of the prosecutrix is not corroborated they would be justified in refusing to convict.
The indictment charged the commission of the offense on or about March 1, 1917, in Minneapolis, Hennepin county, Minn. There was evidence of several acts of intercourse. It was not error to refuse to require the state to elect, until the close of the state's case, on which alleged offense it proposed to rely. The time when such election is required rests largely within the discretion of the trial court.
Nor was it error to refuse to require the state to furnish defendant with a bill of further particulars as to time and place. If an indictment is so general that it fails to give the defendant adequate notice of the charge he is expected to meet, the court should require a bill of particulars; but this also is a matter resting largely in the discretion of the trial court.
There was no error in refusing a new trial on the ground of newly discovered evidence. The proposed evidence was inconclusive, and it is not clear that it could not by the exercise of diligence have been produced at the trial.
The state had the right to contradict the testimony of one of its own witnesses.
Certain acts of alleged misconduct of the prosecutor and alleged irregularities in the conduct of the trial are considered, and held not ground for a new trial.
The prosecutor may express his belief in the truth of the testimony of a witness, if in so doing he is arguing or drawing deductions from the testimony given in court. A. H. Hall and Mead & Bryngelson, all of Minneapolis, for appellant.
C. L. Hilton, Atty. Gen., and John M. Rees and Walter H. Newton, both of Minneapolis, for the State.
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] 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 Girl's 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, denied 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 her 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] 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] 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, Minn. 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 proposed 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] 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, informing 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. Wharton, Crim. Pl. § 702. The propriety of such requirement depends upon the facts and circumstances of the case. 2 Bishop, Crim. Proc. § 643; State v. Davis, 39 R. I. 276, 97 Atl. 818, Ann. Cas. 1918C, 563;People 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] 5. Defendant's counsel argues with much earnestness that the result in this case of following the rules of law heretofore laid down by...
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