140 Minn. 308 | Minn. | 1918
The defendant, Frank J. Dunn, was convicted of the crime of murdei in the first degree and sentenced to the penitentiary for life. The victim was his wife, Alice M. Dunn. He appeals from the order denying a new trial.
Four propositions are advanced as grounds for a new trial, viz.: The evidence does not support a conviction; the court erred in rulings upon the admission and exclusion of testimony; there were errors and defects in the charge; and misconduct of counsel.
The main facts and circumstances leading up to and surrounding the crime, as revealed at the trial, which the state contends unerringly point to and prove defendant’s guilt, will briefly be stated. At about 1:30 a. m. of April 26,1917, three men known as Joseph P. Bedenbaugh, Frank McCool and John Doyle broke into the dwelling 793 Selby avenue. St. Paul, where resided James F. McQuillan and his family. The members of the family were Mr. McQuillan and his wife, two sons and two daughters. The older of these daughters was Alice M. Dunn, a young woman about 27 years old. The house faced south on Selby avenue. The two daughters slept in the same bed in the southeast corner room on the second floor. Their parents occupied the northeast corner room on the same floor; one of the sons was in the room between the two mentioned; and the other son, a young lad, slept in the northwest corner room. Bed-enbaugh and McCool testified to the breaking in, and to the fact that the former alone went into the northeast bedroom, flashed a search light into
Some events prior to the murder should be stated. On August 4,1914,
One Hickey, for the state, testified that in the fall of 1916, when confined in the St. Paul workhouse, Moore came to him and said that if he desired to make some money to come, as soon as let out, to Chiekett’s saloon, where Moore was bartender. Hickey came and was told by Moore .that "there was a party in town that a woman was bleeding, and that this party wanted her bumped off,” and if Hickey would take hold of it there was $3,000 in it for him. Later Hickey needed money and applied to Moore. Moore used the telephone, and in a few minutes Dunn came and talked with Moore. The latter offered to introduce Dunn to Hickey, but Hickey testified to hearing Dunn say it were better for him not to know Hickey. Hickey also testified that Dunn handed, money to Moore, and as soon as Dunn left Hickey received $50 from Moore. Moore worked for a small salary, paid weekly. About this time Hickey met Bedenbaugh, a hardened criminal 20 years old, at Chickett’s. Both men occupied a room over the saloon for a short time, and left the city together. Bedenbaugh went to Kansas City, married and lived there some months. While there he received letters from Moore inquiring whether he was to carry out the deal Hickey had undertaken, as the latter had apparently an attack of cold feet. Towards the middle of
The defense contends that discrepancies are found in the testimony of the state’s witnesses; that neither Redenbaugh nor McCool claim to have had any communication with Dunn or to have seen him speak to Moore; that Dunn’s visit to the safety deposit vault shortly after noon on April 26 was to get a note which one Gleason desired to pay; that the state has failed to show that Redenbaugh and McCool had any money worth mentioning after the murder; and that Dunn’s previous unblemished character, as testified to by numerous persons from all walks of life, is such that the jury were not justified in finding him guilty. It should be mentioned here that defendant admits that he paid Ferdig the $1,000 in July, 1915, and Brown and Ferdig $4,000 more, a few days later, and also $550 or $600 additional in the fall of the same year, but says fear caused him to submit to this blackmail — realizing that on his visits to Montana he had incautiously related his domestic troubles to these men, and thus enabled them to concoct the story that he plotted his wife’s murder, for, being two against one, they stood a good chance of successfully carrying out the threat of criminal prosecution. Of course, Dunn denied any connection with Moore and sought to show that he felt-
Moore, Eedenbangh, McCool and Doyle were indicted jointly with defendant. Moore had been tried separately. Neither side procured his testimony in this ease. Doyle has not been canght. Eedenbaugh and Mc-Cool are now in the penitentiary, both being sentenced for the brutal killing of policeman Connery of Minneapolis, two days prior to the murder, of Alice M. Dunn — Eedenbaugh for life and McCool for 30 years. Neither has as yet been tried under the indictment here involved.
The above recital must suffice as a basis for disposing of the contentions made for a new trial. In claiming that the verdict is not justified and that appellant was entitled to an instructed verdict in his favor, four propositions are advanced. It is said:
(a) The evidence having probative force does not connect Dunn with the murder; and that which pretends to connect him is from discreditable sources and full of contradictions. The record has been examined with much care. Some minor discrepancies appear in the testimony of witnesses for the state, but the same may be said as to that of appellant. However, on the whole, it can truthfully be said that this record contains lfess of unexplainable contradictions than is usually found in important criminal prosecutions, and the evidence pointing to guilt is of such cogency that it is not perceived how an impartial mind, considering the same in all its bearings, can escape the conviction that appellant is guilty beyond a reasonable doubt.' The confessed actual murderer could have had no purpose in making so certain the death of the one sister and taking pains to inflict no harm on the other, clinging to her, unless this was done pursuant to the direction of Dunn, as Eedenbaugh testified to having been instructed by Moore. Neither could his companions McCool and Doyle have had. They must have been directed, as they said, not only to the house, but to the one victim in that house. Nor could Moore have had any motive for desiring the death of this young woman, except for the price that was to be obtained from some one who had. Appellant alone seems to have had á sufficient motive to pay the price. He would not live with his wife. Her religion and, perhaps, her love forbade her from setting him free. He was compelled to pay her a substantial monthly allowance. The decree, under
(b) It is said the evidence of Redenbaugh and McCool is uncorroborated, impeached and discredited. The testimony of Hickey, Brown and Ferdig, as well as appellant’s admitted dealings with the two last named, corroborate the story of Redenbaugh and McCool insofar as relates to Dunn’s planning to have the life of his wife taken. The jury, could also find corroboration in the planned meetings with Mrs. Dunn in the drug store'on the fifteenth and nineteenth of April, in the visit to the safety deposit vault after the murder on the twenty-sixth, and in other circumstances that dovetail in with the testimony of Redenbaugh and McCool as to when the former saw Mr. and Mrs. Dunn in the drug store and as to when the $2,900 were paid, to say nothing of the circumstances attending the actual killing. The rule as to the extent of corroboration of the testimony of accomplices has been §o often and so clearly stated that no restatement is needed here. We merely refer to a few authorities: 1 Dunnell, Minn. Dig. § 2457; State v. Lawlor, 28 Minn. 216, 9 N. W. 698; State v. Barrett, 40 Minn. 77, 41 N. W. 463; State v. Whitman, 103 Minn. 92, 114 N. W. 363, 14 Ann. Cas. 309; State v. Briggs, 122 Minn. 493, 142 N. W. 823; State v. Price, 135 Minn. 159, 160 N. W. 677; State v. Becker, 215 N. Y. 126, 109 N. E. 127, Ann. Cas. 1917A, 600; 5 Ruling C. Law 1090, § 40.
(c) That the evidence involving appellant is circumstantial may be conceded, but it is none the less persuasive. It is true, as the defense states, that the incriminating circumstances come largely from the testimony of confessed blackmailers like Brown and Ferdig, a professional thief like Hickey, and convicted murderers and hardened criminals like Redenbaugh and McCool, and if there be any act or declaration of Moore admissible, as of a coconspirator, he also had served time. The state properly retorts that it has no-choice of witnesses; it must make use
(d) The good character and business standing of appellant are said to balance the scale of justice in his favor. Previous good character no doubt weighs heavily for a defendant in a criminal prosecution. But it is for the jury to determine whether the proof of good reputation, the evidence of character, is such that, in connection with all the other evidence in the case, it suffices to raise a reasonable doubt of guilt. It is not infrequent that persons of previous good character commit'crimes most foul. The effect of the evidence of Dunn’s good character and disposition was for the jury alone.
In connection with this claim of the insufficiency of the evidence to sustain the verdict, the learned counsel, who now appear for appellant, but who did not participate in the trial, contend that if Dunn is to be held for this murder it must be as a eoconspirator with Eedenbaugh, and that the only evidence of that is to be found in certain acts and declarations of Moore testified to by Eedenbaugh. 'We think that is not so.
In the first place, a conspiracy being established, the acts and declaration of any one of those in the conspiracy, made thereafter in the furtherance thereof, is proper evidence in the trial of any one of the coconspirators, whether present or absent. State v. Evans, 88 Minn. 362, 92 N. W. 976; State v. Ames, 90 Minn. 183, 96 N. W. 330; State v. Hunter, 131 Minn. 252, 154 N. W. 1083; Kelley v. People, 55 N. Y. 565, 14 Ann. Rep. 342; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320; Collins v. State, 138 Ala. 57, 34 South. 993; Sanderson v. State and Cook v. State, 169 Ind. 301 and 430, 82 N. E. 525, 1047; State v. Crofford, 133 Iowa, 478, 110 N. W. 921; People v. McGarry, 136 Mich. 316, 99 N. W. 147; State v. Prater, 52 W. Va. 132, 43 S. E. 230. The
In the second place, neither Brown, nor Eerdig, nor Hickey went so far with Dunn as to be held accomplices as a matter of law. Their testimony is persuasive that Dunn had not only a motive to cause his wife’s death, but that he had a fixed purpose to accomplish the deed as soon as a willing tool could be procured. Circumstantial evidence as well as Hickey’s direct testimony connects Dunn with Moore. Therefore acts and statements made by Moore in carrying out the conspiracy were properly received in evidence. Their value as proof of the facts to which they relate depends largely upon the manner in which they fit in and connect with other established facts and circumstances. If the jury concluded a conspiracy existed they must have found that it was formed, as between Dunn and Moore, previous to the writing of the letters by the latter to Bedenbaugh at Kansas City; and all the acts and declarations of Moore of which evidence was received occurred thereafter and in carrying out the planned murder and the payment of the ’price therefor.
The alleged errors in rulings at the trial require no extended discussion. It was not error to receive testimony as to the contents of a letter sent to defendant. State v. Minor, 137 Minn. 254, 163 N. W. 514. Nor do we think there was prejudicial error in permitting Reden-baugh to explain a veiled expression in a letter received by him from
Exception is taken to the charge wherein the jury were instructed that if the state’s claim was found true “that Eedenbaugh killed Alice M. Dunn, and that Dunn directly or indirectly induced and procured him to do the killing, then Eedenbaugh and MeCool were accomplices, and the defendant cannot be convicted on their testimony unless they are corroborated by such other evidence as tends to convict Dunn of the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense and the circumstances thereof. The corroborating evidence must, independently of the testimony of Eedenbaugh and other accomplices, tend in some degree to establish the guilt of the defendant Dunn, but it need not he sufficient, standing alone, to justify a conviction.” The court also under proper instructions left the jury to decide whether Hickey was an accomplice. It is conceded that the above instructions are the same as were given and approved in State v. Hayward, 62 Minn. 474, 65 N. W. 63; but it is claimed they are inapplicable and misleading here where there is no testimony from Moore, the go-between, and no direct testimony from Eedenbaugh that Dunn procured him to commit the crime, whereas in the Haywood case Blixt, the actual slayer, testified that he was hired by Hayward to kill Miss Ging. We think the distinction attempted to be made between the facts of the two cases is not such that it calls for any radical difference in the instructions as to corroboration of accomplices. As already stated insofar as the facts surrounding the killing tended to point to Dunn’s connection therewith, the testimony of Eedenbaugh was direct. So it was with reference to Moore’s part. It is true that the latter’s declaration, testified to by Eedenbaugh, that he acted for Dunn does not prove the agency; but as already shown it was proper testimony of the eoconspirator Moore’s participation, and also a proper circumstance to be considered in this case, assuming that
This caution was given the jury: “It is your duty to examine and consider all the evidence upon the questions at issue with care, to subject it to the scrutiny of your judgment as men of affairs, and to act upon it only insofar as to you it seems reasonable and just.” Error is assigned upon the use of the words “reasonable and just.” The expression is not to be commended, but, if appellant had apprehension that the jury might be misled into believing that they should not act upon what they found to be true in the evidence unless it.were reasonable and just, the attention of the court should have been directed to the matter before the jury retired. State v. Rusk, 123 Minn. 276, 143 N. W. 782. It was a mere verbal inaccuracy which most likely did not prejudice, for the ordinary layman would be apt to say that what is reasonable and just is true.
Error is assigned upon failure to give several requested instructions. The third requested instruction is an abstract proposition of law that was fully covered' by the charge, though not in the specific language of the request.
The sixth request to charge was, in substance, that, unless the jury found beyond a reasonable doubt the existence of the conspiracy between the defendant and the other coconspirators, no evidence given with regard to statements or acts -of said coconspirators could be considered against this defendant. As above seen, the proposed instruction does not correctly state the law. Again, the circumstances attending the killing, even though coming from Redenbaugh and McCool alone, could certainly be considered by the jury in connection with that of Brown, Eerdig and Hickey, and other witnesses, upon the proposition whether the murder was the result of a conspiracy. If a conspiracy did exist, the evidence unerringly points to Dunn as the prime instigator thereof.
The seventh requested instruction is technically objectionable in that it singles out the witnesses Brown and Eerdig to whose testimony the stereotyped charge, of doubtful merit, falsus in uno, falsus in omnibus is to be applied. Nor do we think the court was required to limit the effect of their testimony to merely showing a guilty intent on Dunn’s part. The jury could find that he paid a large sum and stood
The tenth request is good law, but inapplicable. The acts and statements admitted in evidence, of defendant’s coeonspirators and accomplices tending to implicate him were all subsequent to the conspiracy and were in furtherance of the common purpose.
The defendant was entitled to and received a more favorable instruction than the one embodied in the fifteenth request.
The charge of the learned trial court clearly and fairly stated and submitted the issues in the case and gave the applicable legal tules for the jury’s guidance in language which fully assured to appellant his legal rights to a fair and impartial trial.
Misconduct of the prosecuting attorney is also claimed. One of the acts of misconduct charged is that there was a wrongful attempt to interrogate appellant’s witnesses as to their knowledge of the nature of the charges in the separation suit. The attempt was successful so far only as to permit those character witnesses of defendant who had testified to his reputation for kindness, gentleness and amiability to be asked on cross-examination whether they knew of the charges made against him in the separation suit. He also offered more of the files and records in that ease than the court thought proper to receive. It may be that the county attorney desired to acquaint the jury with the ground upon which the deceased based her right to relief, but he did not succeed, and his attempts in that direction are not so clearly wrong or persistent as to require the slightest rebuke. It is said the opening statement, made part of the record, was prejudicial in that the attorney therein announced an intention to prove false or immaterial issues, namely: The grounds upon which separation was decreed; that appellant had placed his property in his brother’s name; that he procured the advice of his attorney in the Ferdig blackmail matter; and the conviction of Moore. The testimony pertaining thereto, insofar as received by the court, seems to have made all of these matters except the last, proper for the jury’s consideration as circumstances bearing upon the ultimate issue in the case. No objection was raised to the reference to Moore’s conviction. Indeed, appellant’s counsel on the cross-examination of Kedenbaugh brought out the fact that Moore had
A perusal of the entire record convinces us that defendant has had a fair trial in which he was ably defended by alert counsel of marked ability and experience in criminal law; that his legal rights were fully protected, and that the verdict is amply sustained by the evidence.
The order must be affirmed.