| Minn. | Jul 15, 1859
By the Court
The bill of indictment charges the Defendant with stealing in the county of Nicollet certain property belonging to Nathan Myrick and Andrew J. Myrick, of the value in all of about one hundred and sixty-five dollars.
A change of venue was had to the county of .Brown, and on the trial which there took place, the Defendant was found guilty of the charge.
¥e infer from the meagre statement of the evidence, shown by the record, that a witness or witnesses for the prosecution had stated, that in searching the prisoner’s house for the property alleged to have been stolen, two dresses for a child had been found in the cellar, — but whether any of the property-mentioned in the indictment was also found in the cellar, or on the premises, or what possible connection the finding of these dresses which are not mentioned in the indictment, could have with the offence charged does not appear on the
We have, however, the testimony of Minne Hoberg, a daughter of the accused, who was examined on the part of the defence in regard to these dresses, and she testifies that parties were there, searching the house, on three different days, and had taken away a great many things. That after one of their visits her mother became very much frightened, and desired to leave the house and move out on their claim ; that she, the mother, commenced packing up the children’s clothes and other things; that she packed some of the things in a trunk and hid away others in the cellar, and amongst those taken to the cellar, were two white dresses belonging to Naught’s child, a child about a year old, which the witness’ mother had taken to nurse. She stated that she saw her mother taking them down, but did not know where she put them.
The prosecution then called on G-. A. Brown, a witness who had been before examined, and projiosed to show by him “that one of the two dresses testified to as having been found in the .cellar of the prisoner, was not the dress of Naught’s child, but was the dress of a child of the said Brown.”
This ivas objected to on the ground that it tended to support a charge against the prisoner, of which he was not advised by the indictment, and because in point of fact there was, as alleged, another indictment pending against liim for the larceny of those identical dresses. The Judge sustained the objection, but still permitted the proposed testimony to come in “for the purpose of rebutting or impeaching the testimony of the witness, Minnie Hoberg,” and thereupon the witness was permitted to and did testify against the repeated objections of the prisoner’s Counsel, “that in searching the prisoner’s house, they found two little child’s dresses, hidden cmay in the cellar, one of Avhich he recognized, and was positive was a dress which had leen stolen from the clothes line at his house.” Exception was taken to the admission of this testimony.
The sole purpose for which the witness Brown was offered,
We are unable to see anything in the record that would justify the admission of such testimony, even had the question of ownership of the dress been material — and we do not think it was — the witness, had he testified that the dress belonged to his child, should not have been permitted to add to that, the further statements that it had been stolen from the clothes lino at his house, and was found hidden away in the prisoner’s cellar. These last statements, as before observed, were far beyond what the prosecution proposed to prove by the witness, and were well calculated to prejudice the prisoner in the minds of the jury. The State should not have been permitted on the pretence of discrediting the witness, by impeaching her, on a matter immaterial to the issue, to prove a distinct felony not charged in the indictment. We can scarcely conceive of any testimony more likely to have had an injurious effect upon the minds of the jury.
The cases cited by the counsel for the Defendant, fully sustain the objection here urged, and some go to the extent of holding that in all cases where immaterial testimony had been admitted, and the chances are merely equal that it may have injuriously affected the minds of the jury, that a new trial should be granted.
Another objection exists in the fact that after the jury had retired to consider upon their verdict, the Judge visited and had communication with them without consent of, and apart from the prisoner and his counsel.
This is clearly irregular, whatsoever the motive, and howsoever harmless the communication. The character of the Honorable District Judge is a sufficient guarranty that in the the present case, the motive that prompted the visit was not improper, and we have no doubt that the communication was limited, as stated in the case, to merely informing the jury
The Court below erred in admitting the witness Brown to testify as to the stealing of an article not mentioned in the indictment, and in refusing to set aside the verdict, as asked for by the counsel for the Defendant.
Now trial awarded.