122 Minn. 493 | Minn. | 1913
Defendant was indicted and thereby duly charged with the crime1 of highway robbery, alleged to have been committed at the city of Minneapolis on the night of July 13, 1911. He was found guilty and sentenced to imprisonment for a term of years, and appealed from the judgment of conviction and also from an order denying a new trial.
The case, though presenting by the evidence some unusual features,, is an ordinary charge of highway robbery, in respect to which the-law is well settled. The record before us is very voluminous, covering three volumes of typewritten matter, and is supplemented by an elaborate argument by counsel for defendant of something over a-thousand pages. In disposing of the case, we shall not review the evidence any further than may be necessary to an undertsanding of the questions involved, for an extended discussion thereof would serve no useful purpose. The state established the fact, about which there is no controversy, that, at the time charged in the indictment*.
A brief reference to some of the persons who played an important part in the events leading up to the crime, some of whom were witnesses on the trial, will be of assistance in understanding the issues presented.
Jerry McCarthy, the actual perpetrator of the crime, was and had been for some time a confirmed criminal, and a daring outlaw. He had been convicted of several crimes, and accused and suspected of the commission of offenses for which he had not been called to account. In March, preceding the crime in question, he escaped from the state prison, where he was serving a sentence under conviction of an assault upon a police officer with intent to kill. The evidence tends to show that, from the time of his escape, he made his headquarters in northeast Minneapolis, in the Immediate vicinity of the residence of defendant with whom he was acquainted and on intimate terms, as will be presently noted. During the month of June preceding the crime in question, he committed several crimes in this neighborhood, but was not apprehended therefor.
Joseph Olinger was a police officer, and his “beat” included that, portion of Minneapolis where McCarthy operated after his escape from prison. Olinger knew McCarthy, and knew also that he was. an escaped convict. Just when he learned that fact is not important. The evidence justifies the conclusion, however, that he knew that McCarthy was operating within his territory. But it may be said, in behalf of the dead officer, that his apparent acquiescence in several crimes committed by'McCarthy, and his failure to arrest him,
Arthur H. Denson resided in the same neighborhood, and owned a pool room and cigar stand, which was much frequented by McCarthy, dinger and defendant. Denson also owned an automobile, which he operated for the convenience of, and to enable McCarthy to make hasty escape from, the place of crimes committed by him. His assistance in this respect was frequent, though the evidence does not show that he ever actually participated in the commission of any •of the crimes charged against McCarthy. He was either in voluntary conspiracy with McCarthy and defendant, for the purpose of perpetrating the crimes, or he was, as he claimed on the trial, coerced to enter therein to the extent stated by threats at the hands of defendant and McCarthy, who possessed minds of much greater strength than he did. Whether he was a voluntary or enforced participant will be referred to later, and in connection with the contention of defendant that it was entirely voluntary on his part.
Defendant, a man well along in years, with a wife and daughter, resided in this section of Minneapolis, and had been a resident of the city for many years. He had associated with men of prominence in the city, held some subordinate official positions, and was generally supposed to be a man of character, though it does not seem that he pursued any established calling. He had known McCarthy for several years prior to the date in question, and well knew of his •criminal record and character. McCarthy roomed near and was a frequent caller at defendant’s home. In fact, the evidence tends to show that McCarthy possessed a key to the front door of defendant’s residence, with which he could enter the house at any time. Defendant was fully informed of what McCarthy was doing in the neighborhood, from the time of his escape from prison until his death, yet he made no report to the police authorities either of his
Another person who seems to have taken some part in the law violations, and who was present at some of the conferences at the home of defendant was known only as “Jim,” plain Jim. However, immediately after the death of McCarthy at the hands of dinger “Jim” disappears, makes a successful exit, and is not thereafter heard of or his whereabouts known.
With this general statement, we come to a consideration of defendant’s assignments of error, the first of which is that the evidence fails to support the verdict.
We do not deem it necessary to determine the truth in this respect. It may be conceded, in harmony with defendant’s contention, that Denson’s participation was entirely voluntary and that he was an accomplice. We find, however, from the record, ample evidence in corroboration of his testimony implicating defendant in the commission of this and the other crimes. He is corroborated by defendant’s own testimony, by the voluntary statement defendant made to the police officials, and by the testimony given on the trial by Officer Cronin. All of which, if satisfactory to the jury, sufficiently corroborated Denson.
It is well settled in cases of this kind that the corroborating evidence need not be sufficient, in itself, to justify conviction of the accused. All the rule requires is that the corroborative evidence tend in some substantial measure to affirm the truth of the testimony of the accomplice and to point to the guilt of the defendant. State v. Lawlor, 28 Minn. 216, 9 N. W. 698; State v. Clements, 82 Minn. 434, 85 N. W. 234; Clark v. Clark, 86 Minn. 249, 90 N. W. 390;
The evidence was clearly admissible in corroboration, for it tended strongly to confirm the state’s contention that a general plan and scheme was inaugurated by defendant and McCarthy, and we think Denson, and probably dinger, to commit the crimes .for the purpose of plunder and gain. The evidence shows, at least tends to show, that, soon after McCarthy escaped from prison, he came into touch with defendant, and a plan and purpose was then formed to profit from his criminal ability and skill. Denson was subsequently brought into the conspiracy, because of his. ownership of an automobile, which was serviceable in enabling McCarthy, as expressed in the testimony, to “make his getaway.” It was not intended that defendant should personally participate in the commission of the lawless acts. But it was intended that he should, and the evidence shows that he did, co-operate, counsel and advise with McCarthy upon the ¡subject. The case is brought within the rule by which evidence of ..other crimes is admissible in corroboration of the specific charge laid in the indictment. State v. Ames, 90 Minn. 183, 192, 96 N. W. 330; State v. Peterson, 98 Minn. 210, 108 N. W. 6. All other .crimes, of which evidence was received, were committed about the time of the Brennan robbery, and during a period of a month or six weeks, and were intimately associated and connected with the general •plan for which the evidence tends to show the conspirators banded ■themselves together. This statement includes the burglary of the ■ drug store of Kampf & Warneke. There may be some evidence tending to show that defendant did not expressly advise this crime, but it was one of the series contemplated by the parties, and it was :for the jury to say whether defendant had previous knowledge there
All this evidence was excluded by the court either as hearsay or as self-serving declarations of defendant, and therefore incompetent and inadmissible. What defendant said on this subject seems not to have been seriously considered by the witnesses who heard it, but rather as loose talk and not as expressing a bona fide purpose on the part of defendant to capture the outlaw. One statement was to the effect that defendant intended soon to “pull off a stunt” that would make certain detectives of wide repute “look like a trey spot.” Defendant had a talk with the United States marshal at his office in Minneapolis, in which he stated that he thought he could locate McCarthy, and inquired whether the Federal authorities wanted him. He did not say to the marshal that he was then in daily association with McCarthy, or indicate that the criminal was then in the city of the marshal’s residence. This evidence was also excluded, as well as all other testimony of a similar character. We discover no error in the rulings of the court.
The testimony comes within the general rule that self-serving declarations of an accused person are not admissible in his favor, unless a part of the res gestae, or a part of a general confession. 2 Wharton, Crim. Ev. (10th ed.) p. 493, note; 12 Cyc. 426; State v. Spencer, 73 Minn. 101, 102, 75 N. W. 893; Colquit v. State, 107 Tenn. 381, 64 S. W. 713; Newcomb v. State, 37 Miss. 383. And although such declarations are admissible when part of the res gestae, and perhaps in other special instances, the case at bar does not come within the exception. The declarations in question were not a part of the
7. Another group of assignments challenges certain portions of the charge of the court to the jury and the failure to instruct upon ■some particular features of the case. These assignments are without merit. The charge, taken as a whole, was a comprehensive statement of the case, and the issues involved, and a clear and accurate explanation of the rules of law applicable to the facts. It was not excepted to at the trial, nor was any suggestion then made that it was incomplete or indefinite in any respect. Defendant made no requests for instructions upon the points now claimed to have been omitted from the charge, and is therefore in no position to urge a failure to instruct. State v. Zempel, 103 Minn. 428, 115 N. W. 275.
9. This covers all that we deem necessary to say. The record has been fully considered, all defendant’s points weighed with care, with the result that in our opinion the conviction of defendant is sustained by the evidence, no reversible errors are presented by the assignments of error, and the conviction must stand.
Judgment and order appealed from affirmed.