159 Minn. 345 | Minn. | 1924
Actions to recover possession of stolen diamonds. In June, 1921, Henry Hankins was convicted at Des Moines, Iowa, of robbing a bank. Immediately after his conviction he and Geneva Wright were married. Accompanied by the sheriff, they went to her home ostensibly to inform her mother of the marriage. At the house he eluded the sheriff and escaped. In July, 1921, he came to Minnesota and Geneva joined him here. On July 20, 1921, two men entered the jewelry store of J. S. Cohen in the city of St. Paul, leveled revolvers at the clerk, seized a large number of diamond rings and escaped. In the evening of August 16, 1921, two men armed with revolvers entered the apartment of Grace Raymond in the city of Minneapolis and robbed her of a pair of diamond earrings. On August 17, 1921, Henry Hankins took a diamond to a jeweler in the city of Minneapolis and had it mounted in a gentleman’s ring. When about to leave the store, he was arrested by police officers. On the way to the police station, he drew an automatic revolver and ran down the street shooting at the officers who pursued him. The officers also began shotting and he was killed. The eoroner took possession of the body and found upon it 6 diamonds which are designated in the record as Exhibits A, B, O, D, E and F. The clerk in the Cohen store identified him as one of the bandits who had robbed that store.
Cohen brought an action in replevin against the coroner to recover exhibits A, B and D, claiming that they were three of the
The intervener invokes the familiar rule that, in order to recover in an action of replevin, the, plaintiff must establish his right to the possession of the specific property claimed, and insists that the plaintiffs faffed to identify any of the diamonds as the specific diamonds stolen from them.
Plaintiff Cohen had a record of his diamonds. He had purchased the stones in the east unmounted and had mounted them himself. The jury found that he was the owner of Exhibits A and D. Exhibit A is the stone which HanMns took to the jeweler and had mounted on the day of his death. Cohen identified it by its weight, color and imperfections. The imperfections consisted of two black carbon spots and a scratch on the top. He admitted frankly, however, that there are many diamonds of the same weight and color and having the same imperfections, and that it was impossible to say positively from the examination that this was the identical stone stolen and not another similar one. Exhibit I) was set in what is
The jury found that plaintiff Eaymond was the owner of Exhibits B and C. These stones were unmounted at the time they were taken from the body by the coroner. Plaintiff Eaymond had purchased one of her earrings from one dealer and the other from another, and they differed slightly. She was positive that Exhibits B and C were her diamonds removed from their settings, but was unable to explain how she distinguished them from other similar diamonds further than to say that they were of the same size and appearance and differed from each other the same as those in her earrings, and had been found on the body of the man who had taken hers from her ears less than 24 hours before these were found. The dealer from whom she purchased the second earring stated that he had compared the two for the purpose of matching the first as nearly as he could, and that Exhibits B and C were of the same size and appearance and differed from each other the same as the stones in the earrings.
' Exhibits A and D were found in the possession of the thief who-had stolen Cohen’s diamonds. Cohen identified Exhibit D positively by the setting. Exhibit A corresponded in all particulars to another of his diamonds stolen at the same time, and was the only diamond of that size or character found in the possession of the thief. Within 24 hours after Grace Eaymond’s diamonds had been stolen Exhibits B and C were found in the possession of the thief. They corresponded in size and appearance with those stolen from her, and were the only diamonds of that size or appearance found in the possession of the thief. We think the jury were fully justified in finding that Exhibits A and D were two of the diamonds stolen from Cohen and that Exhibits B and C were the two stolen from Grace Eaymond.
The intervener contends that the verdicts are void for the reason that they are not in the alternative, for the recovery of possession of the property or of its value, if possession cannot be obtained,
The intervener cites no authority in support of her claim that the court erred in permitting the jury to take to the jury room Exhibits E and F not claimed by either plaintiff. They were exhibits in evidence and were properly submitted to the jury with the other exhibits.
It is true, as pointed out by the intervener, that Exhibits E and F were not involved in either action, and that the jury went beyond Its province in assuming to determine that the intervener was entitled to the possession of them. But, as no one else is complaining, we fail to see any prejudice to the intervener.
The-court gave the requests of the intervener as if they were a part of his charge in chief, and then remarked: “The last four statements are requests of the intervener in this case, and Í give them as I have read them.” The intervener complains of this remark. It might well enough have been omitted, but was not made in a manner to detract from the force of the statements given, and the charge taken as a whole was eminently fair to the intervener and above criticism.
The orders are affirmed.