151 Minn. 174 | Minn. | 1922
Defendant was indicted for the crime of having carnal knowledge of a girl under the age of 18 years. The same girl was prosecutrix in State v. Morehart, 149 Minn. 432, 183 N. W. 960, and State v. Swan, 151 Minn. 215, 186 N. W. 581. Defendant was convicted and appeals from an order denying his motion for a new trial and, separately, from the judgment of conviction. There are 59 assignments of error. We discuss only _ those upon which appellant principally relies.
Q. Were you with any young man on that night?
Q. Now the time that you claim you were with Jensen in the Nash garage, was it before or after you claim that you were with Clifford Lang?
Q. Did you see Clifford Lang on or about the first day of October?
Objections to these questions were sustained. Defendant’s counsel stated that he proposed to bring out by cross-examination that on the date the girl swore she stayed with defendant she had already sworn in the other case she stayed with Lang. An objection that this would not be proper cross-examination was sustained. Later defendant offered to prove by the court reporter that in the Lang case the girl testified she was with Lang on the night of October 1, 1920. Tins was objected to and the objection sustained.
There is another reason why the questions should have been allowed. The rule is that a man charged with an offense of this nature is entitled to much latitude in the cross-examination of the prosecutrix. State v. Trocke, 127 Minn. 485, 149 N. W. 944; State v. Sandquist, 146 Minn. 322, 178 N. W. 883; State v. Jouppis, 147 Minn. 87, 179 N. W. 678. The questions, if answered, might have elicited facts tending to disprove the statements of the prosecutrix in her examination in chief. 'This would not be impeaching evidence and required no foundation to be laid for its introduction. It would not show contrary statements, but acts demonstrating that her testimony as to the time, place and circumstances of the alleged offense was untrue. State v. Connelly, 57 Minn. 482, 59 N. W. 479. It follows that the cross-examination was proper, even though it be conceded that the questions were not correctly framed to lay a foundation for impeachment.
“Not only improper, but it is reprehensible. That would be very dangerous for counsel if I were a witness being examined in that manner. Exception may be given to counsel to the statement made by the court.”
Defendant’s counsel then stated that he was seeking to show that the witness had theretofore testified that he was supposed to be the girl’s father, and his testimony was such as to cast doubt upon his belief as to that, but the objection was sustained. It is urged that the remark of the court was prejudicial to defendant. In asking the question, counsel evidently had in mind the testimony given by the witness in another case. It does not appear that an insult to the ’ witness was intended. The rebuke administered to counsel was unduly severe. Evidently the court regarded the question as an impertinent one. Defendant was not harmed because it was ruled out. But the intimation from the bench that it would be dangerous for counsel to ask such a question if the judge were in the place of the witness was harmful. The use by the trial judge in the presence of the jury, of language which tends to bring an attorney in the case into contempt before the jury has been held a sulficient ground for setting aside the verdict. McDuff v. Detroit E. J. Co. 84 Mich. 1, 47 N. W. 671, 22 Am. St. 673; State v. Phillips, 59 Wash. 252, 108 Pac. 1047. It is apparent from what was said in State v. English, 62 Minn. 402, 64 N. W. 1136, that this court has been inclined to take the same view.
No suggestion was made to the court that the county attorney was taken by surprise by the original testimony of the witness. If it was true, testimony of the prosecutrix on a material matter was false. Defendant was entitled to the benefit of this testimony, but any weight the jury might have attached to it was pretty effectually destroyed by the cross-examination and the testimony of the deputy sheriff. A party calling a witness may not turn on him when disappointed by his testimony and cross-examine him in an attempt to discredit Mm, without some showing that the witness had previously stated he would testify to certain facts, but, when
We are not disposed to look with favor upon a rigid adherence to a rule of evidence which protects a witness against attack, when he makes one statement out of court and another and inconsistent one from the witness stand and both relate to the issues on trial. But we are unable to give our approval to the course followed in the present instance. If the witness had said out of court that she had seen or been with the defendant and the prosecutrix when they were together in an automobile, it might have been proper to impeach her by proving that fact. But the proof could go no farther. It was not proper to cross-examine her, as though she had been a witness for the defendant when giving her testimony. Neither was it proper to contradict her on a collateral matter by the testimony of the deputy sheriff. The natural inference from the evidence erroneously received was that, if the state’s witness had told the truth, she would have corroborated the prosecutrix, and that she had been influenced by the defendant to contradict her. Defendant was not only deprived of the benefit of her testimony, but, in addition, the impression must have been left with the jury that the story of the prosecutrix in this particular was true and his denial false.
We are averse to granting new trials for technical errors, unless the substantial rights of the accused have been disregarded, and it is reasonably clear that he has not had a fair trial. “The holdings of this court do not discourage a vigorous prosecution — they disapprove an unfair one.” State v. Friend, 151 Minn. 138, 141, 186 N. W. 241. When a man is charged with an odious crime, the trial judge should safeguard his right to a fair trial by doing everything that caution may suggest to remove the subtle prejudice which is apt to confront the accused at the threshold of the courtroom. State v.
The judgment is reversed and a new trial granted.