210 N.W. 286 | Minn. | 1926
He contends that the motion should have been granted because the verdict is not supported by the evidence. The alleged offense was committed in the defendant's house while his wife was absent. It is our opinion that the testimony of the child assaulted, and of another little girl who was with her and witnessed defendant's acts, justified the jury in returning a verdict of guilty, notwithstanding defendant's denial of the charge and his testimony that he was not at home at the time fixed by the state in its proofs.
The fact that there was no immediate complaint by the girl assaulted, that no physical examination was made by a physician until about four months later, and that there was no showing of physical injury, were circumstances in defendant's favor, but were not sufficient to require the jury to find that defendant's guilt had not been established beyond a reasonable doubt.
Citing State v. Glaum,
In his direct examination defendant was asked whether he was ever charged with the commission of any other offense, and answered in the negative. On cross-examination, his attention was called to the question and his answer, and this question was put to him: "You really have been charged with other offenses, haven't you?" Answer: "At South St. Paul, this other charge."
In his address to the jury, referring to the defendant, the county attorney said: "He admitted he was arrested by his wife for abusing her." Here defendant's counsel interrupted with an objection to any reference to defendant's supposed trouble with his wife. The court said that the jury would be instructed as to the objectionable remark. In charging the jury, the court made no reference to the remark complained of. Defendant now assigns the omission as error. The omission may have been inadvertent and, if counsel for defendant deemed it prejudicial, they should have called it to the attention of the court at the conclusion of the charge. Dun. Dig. § 9798.
In any event, whether a new trial should be granted because of improper remarks of the county attorney is largely within the discretion of the trial court, State v. Hass,
In justice to defendant's present counsel, it should be said that they did not represent defendant at the trial.
Order affirmed. *447