153 Minn. 525 | Minn. | 1922
John M. Guise, a high school principal, was assaulted and beaten by two men, while engaged in starting his car in the rear of his home, at about 7:30 a. m. of October 21, 1921. The assault was committed with an instrument, described in the indictment as a blackjack or some other instrument likely to produce grievous bodily harm. It is not claimed that defendant in person committed the assault, but that he procured it to be committed. Defendant was convicted and he appeals from the judgment of conviction.
The witness Kobert Bryson testified as follows:
His home was in Chicago. On October 17, 1921, defendant employed him, together with two other men, Lombard and Collins, to come to St. Paul to do guard duty, during a printers’ strike, for the protection of property and printers’ homes. The three came to Minneapolis and to a hotel in that city, Bryson registering under the name of Wilson. On the nineteenth, defendant called for them in an auto, and drove to St. Paul, drove on Lincoln avenue and located the home of Klaus at 1291 Lincoln avenue in part of a duplex house. Guise occupied the other part. Both used the same garage in the rear of the house. Defendant said several of his men had been beaten up, and Klaus was the instigator of it all, and he wanted him “trimmed,” but did not want him seriously injured. As they drove by Klaus’ house, defendant said: “He is the fellow he wanted to get,” “that he was the instigator of his men being beat up,” and “wanted us to make suggestions” he said: “How can
As the car, containing the five men mentioned, stood on Grand avenue, Bryson tore up an envelope addressed to himself at Chicago, on which was written the name of defendant. Mrs. Guise saw the
Bryson’s testimony clearly shows defendant’s participation in the crime. But Bryson was. an accomplice and the verdict cannot stand on his testimony, without corroboration.
Brickner, the man who drove the automobile on all the occasions mentioned, also testified. His testimony was in substance as follows:
He was an automobile salesman employed by the Studebaker Company in St. Paul. He met defendant while in the army in France during the war. Early in October, 1919, defendant called at witness’ place of business to look at a car advertised for sale. After several interviews, defendant asked Brickner for the use of a car to entertain some friends for three or four days and evenings. Witness got permission to allow defendant the use of a second hand blue Oldsmobile car, and, at defendant’s request, Brickner drove this car on the occasions referred to by Bryson. Brickner described the itinerary much as Bryson did. He heard some of the conversations. He heard defendant say they “wanted to get this man.” Some of the other conversations testified to by Bryson were detailed. On the evening of the twentieth, defendant arranged with witness to use him and his car at 6 a. m. next day. In order to make it easy for witness, defendant arranged for him to use defendant’s room at the Seymour hotel for the night, and this was done. On the morning of the twenty-first, witness met defendant, and drove him in the car to Snelling and University, where they met Bryson, Lombard and Collins. Brickner’s account as to what took place up to the time Bryson left the car, confirms Bryson’s testimony.
Defendant and witness then started for St. Paul. At the corner of Cromwell and University avenues they were stopped by three men who hailed them for a ride down town. The men were taken on. Defendant got off at St. Peter and Iglehart streets near his home, and witness drove to his place of business, arriving there about 8:15.
Perhaps Brickner was an accomplice. We will refer to that matter hereafter. If so, there was much other corroboration of both Bryson and Brickner. For example:
Witness Beck, Brickner’s employer, testified that defendant called at his place of business some time previous to October 21, and was introduced by Brickner as a “prospect” for a new car, and that Brickner obtained permission to use his second-hand blue Oldsmobile car.
Klaus testified he heard yelling in the alley, ran out and saw two men running toward Grand avenue, and saw them get into the standing car, and saw the car drive off; Blaus hollered and made all the noise he could, as he ran, and called to some one to get the number. As he ran past the garage, he saw Guise with his hair unkempt and .blood on his face, “pretty badly beaten up,” standing looking after these two men and hollering.
Witness Allen, a milk wagon driver, testified that he saw a car parked opposite a vacant lot on Grand avenue, at the point fixed by Bryson, at about 7:30 a. m. October 21, with'two men in the front seat. Other witnesses saw the same car at the same place.
The clerk at the Seymour hotel testified that room 314, the room Bryson said he occupied on the night of October 20 and 21, was defendant’s room. Witness Chambers, employed by defendant, testified that, on the morning of October 20, defendant asked him to go to the Studebaker Sales Company and ask for Brickner, and get some blackjacks from under the back seat of the car they had used the night before, and that he went and found the blackjacks in a car pointed out to him by Brickner, and took them tot the office. He also testified that on the morning of the twenty-first at a little before 8 o’clock defendant called him to come to his apartment on Iglehart street, stating that he “had a puncture” and that witness drove defendant down town.
Mrs. Bryson testified that after her husband’s arrest in Chicago she came to St. Paul and met defendant with the detective Carling; that defendant told her they did not want Bryson brought to St. Paul and he gave her the names of attorneys to see in Chicago. She saw them and they represented Bryson. She came again to St. Paul and saw Carling and defendant; that, in Carling’s absence, defendant said to her: “Tell Bryson to stand pat, not to recognize me at all and take the blame, and if I am out I can help him, but if I am in jail I can’t help him, but * * * if they bring him back I will appeal the case and appeal it but, if he has to do any time, it will probably only be a year, and I can get him pardoned by the Governor in about eleven months, and, every month
As to the juror Jarvis, who was a member of the Citizens Alliance, the challenge was properly sustained. The Citizens Alliance is apparently an association of business men and business concerns, and, since defendant was in the employ of the Citizens Alliance, he was in a sense the employe of its members, and the relation of master and servant between a juror and a party is good ground for challenge of the juror for implied bias. C. S. 1913, § 9233, subd. 2.
As to the three who were employes of members of the Citizens Alliance, we think the challenge was not well taken. Yet the ruling was not made arbitrarily, but in good faith, and there is no intimation that the jury that tried the case was not in all respects a fair jury. Under these circumstances it is well settled in this state thai the error was without prejudice.
In State v. Kluseman, 53 Minn. 541, 55 N. W. 741, the trial court improperly sustained a challenge, by the state, of a juror for implied bias. On appeal, this was held no ground for setting aside the verdict. The syllabus reads:
“Where the court, on the challenge of the state, improperly rejects a juror, it will not prejudice the defendant if he was tried by an impartial jury,” and G-ilfillan, C. J., in the opinion said:
*533 “Whether the facts * * * made a case of implied bias, ■within the statute, or not, his rejection could not, so far as the record shows, have prejudiced the defendants. They had no right to any particular juror being selected, provided they had an impartial jury to try their case, and, nothing appearing to the contrary, it is to be presumed that the jury was impartial.”
This decision was followed and approved in State v. Smith, 56 Minn. 78, 83, 57 N. W. 325, and Perry v. Minneapolis St. Ry. Co. 69 Minn. 165, 72 N. W. 55. Unless we overrule these decisions, defendant’s contention in this case cannot be sustained. These decisions seem to us sound. They are also in accordance with the weight of authority. The matter is summarized in Thompson, Trials, § 120, as follows:
“As already pointed out, the right to reject is not a right to select. No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created. Thus, in the process of impaneling, no party is entitled, as of right, to have the first juror sit who has the statutory qualifications; though there are authorities to the contrary, chiefly based on exaggerated views of the rights of the accused in criminal trials. But this is on principle quite untenable; since, if the prisoner has been tried by an impartial jury, it would be nonsense to grant a new trial or a venire de novo upon this ground, in order that he might be again tried by another impartial jury.”
See also United States v. Marchant & Colson, 12 Wheat. 480, 6 L. ed. 700; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. ed. 80; State v. Ching Ling, 16 Ore. 419, 421, 18 Pac. 844; State v. La Croix, 8 S. D. 369, 66 N. W. 944; People v. Jose Maria Arceo, 32 Cal. 40, 47; John D. C. v. State, 16 Fla. 554, 561; Commonwealth v. Mosier,
We adhere to the rule of our former decisions.
“Every person who with intent to kill a human being or to commit a felony upon the person or property of the one assaulted or of another—
1. Shall assault another with a loaded firearm or any other deadly weapon, or by any force or means likely to produce death.
2. Shall administer or cause to be administered to, or taken by, another, poison or any other destructive or noxious thing, so as to endanger the life of such other person, shall be guilty of assault in the first degree * *
Section 8632 provides that
. “Every person who, under circumstances not amounting to assault in the first degree—
4. Shall wilfully and wrongfully assault another with a weapon or other instrument or thing likely to produce grievous bodily harm—
Shall be guilty of an assault in the second degree.”
The indictment charges defendant with “the crime of assault in the second degree committed as follows:” It then charges that defendant did “make an assault in and upon the person of one John M. Guise with an instrument likely to produce grievous bodily harm, to-wit: a blackjack, or some other instrument likely to produce grievous bodily harm.” Then follows the charge that defendant did inflict grievous bodily harm and did, with said instrument, cut, beat and wound said Guise about the head and face.
The contention is that it was necessary in the indictment to allege that the assault was committed “under circumstances not amounting to assault in the first degree.” The argument is that this case comes within the rule stated in State v. Kunz, 90 Minn. 526, 97 N. W. 131, State v. Minor, 137 Minn. 254, 163 N. W. 514, and many
It is urged that the reception of this testimony was error. The testimony as to what occurred in Minneapolis was clearly a declaration of coconspirators during the carrying out of the conspiracy and pertaining to it, and was admissible as to all of the conspirators. The evidence as to what was said in Chicago was more doubtful. In view of the plan to “come in and go back” for a series of assaults it was probably admissible on the same theory as the testimony as to what was said in Minneapolis. See State v. Thaden, 43 Minn. 253, 45 N. W. 447. But, however that may be, the declaration in Chicago added little or nothing to the undisputed testimony in the case, and its admission, if erroneous, could not justify setting aside the verdict.
Judgment affirmed.