40 Minn. 55 | Minn. | 1889
Prosecution, resulting in a conviction, under section 112 of the Penal Code of Minnesota. The body of the indictment is as follows:
“The State of Minnesota against Michael Quinlan and Nathaniel W. King.
“Indictment.
“Michael Quinlan and Nathaniel W. King are accused by the grand jury of the county of Hennepin, in the state of Minnesota, by this indictment, of the crime of compounding a crime, committed as follows : The said Michael Quinlan and Nathaniel W. King did, on the 20th day of October, A. D. 1887, at the city of Minneapolis, in said Hennepin county, wilfully, unlawfully, and wrongfully take from one Gotlieb Beisswinger money, to wit, one hundred dollars genuine and current money of the United States of America, a more particular description of which said money is to the grand jury unknown, upon an agreement then and there made by the said Michael Quinlan and Nathaniel W. King with said Gotlieb Beisswinger to withhold evidence of a crime, to wit, the crime of selling liquor without first having obtained license therefor; which said crime had heretofore, to wit, on the 12th day of September, A. D. 1887, been committed by Christ Snyder and Fred Yongard, in this: that the said Christ Snyder and the said Fred Yongard did, on the 12th day of September, A. D. 1887, in said Hennepin county, wilfully, unlawfully, and wrongfully sell spirituous liquor, to wit, one glass of whisky, to one N. H. King, without first having obtained license therefor, — said Christ Snyder and Fred Yongard not being then and there a regular licensed druggist, dispensing said liquor in filling a prescription made by a regular, reputable, and duly-licensed physician in the practice of his profession; said crime not being then and there a case where a compromise is allowed by law. Contrary to the statute in such case made and provided, and against
“J. A. WOLVERTON,
“Foreman of the Grand Jury.”
It was assumed by both parties, upon the argument of this case, that the offence charged is that of compounding a crime, (which is analogous to the common-law offence of compounding a felony,) when, in fact, defendants are accused of another and distinct offence,— mentioned in the same section of the Code, — that of taking money to withhold evidence of a crime. We call attention to this now, that our views, as expressed further on, may be understood by counsel.
Upon the appeal two points are made by defendants — First, that they were convicted upon the uncorroborated testimony of an accomplice, the Gotlieb Beisswinger mentioned in the indictment, who alone testified to the main fact, and was flatly contradicted by each of the other witnesses, some of whom were called by the state; second, a fatal variance, in two essentials, between the allegations of the indictment and the proof. In discussing these alleged errors it will-be well to first consider the relationship existing between Beisswinger, who made the agreement with defendants, (in partnership as private detectives, engaged in securing evidence of the infraction of the laws regulating the sale of intoxicants,) and to one of whom he paid the money, in the presence of the other. Was he an accomplice, whose testimony must be corroborated before a conviction can be had, as provided by Gen. St. 1878, c. 73, § 104? If so, there should have been testimony which, independently of that given by Beisswinger, tended in some degree to establish the guilt of the accused. State v. Lawlor, 28 Minn. 216, (9 N. W. Rep. 698.) An “accomplice” is properly defined to be one who is in some way concerned or associated in the commission of the crime; a partaker of the guilt; one who aids or assists, or is an accessory. 4 Bl. Comm. 331; 1 Phil. Ev. 28. The act made criminal is the taking of money with the specified corrupt motive, and, to be an accomplice, Beisswinger must have participated in the taking. While in other parts of the Penal Code those who give and those who accept bribes are treated alike,
The second point presented, that of a fatal variance in two particulars, seems to have been overlooked upon the trial. We find no allusion to it in the record. To comprehend its force, it is only necessary to examine the testimony upon which defendants were convicted, all of which is before us, in connection with the averments of the indictment as to the crime, evidence of which, it is stated, the defendants unlawfully and corruptly agreed to withhold. The only testimony bearing upon the sale of intoxicating liquors of any kind, or to any person, or relating to the primary offence in the indictment particularized upon the trial we are now reviewing, is that the witness Beisswinger and one William Bungard had sold (not having a license therefor) one glass of beer to N. H. King. Beisswinger was commonly known as Christ Snyder, and as to his name there may not have been a fatal variance. Com. v. Desmarteau, 16 Gray, 1; McBeth v. State, 50 Miss. 81; State v. Bundy, 64 Me. 507. But we think it would be impossible to sustain upon principle, and there are no authorities in that direction, a conviction upon an indictment in which the original crime is alleged to have been committed by Fred' Vongard, by proof that another person (William Bungard) was accused of, or had perpetrated, the offence. It is not a. case of idem sonans, and there is no evidence whatever to indicate that William was known by another name.
It will now be observed that, in the part of this indictment which was intended to correspond with the accusing part of an indictment against Snyder and Bungard, the charge is “ selling liquor,” etc.-, which is no offence. “ Liquor,” according to Webster, may be any liquid or fluid substance. The sale prohibited by statute (Laws 1887,
The order appealed from is reversed, and the cause remanded for a new trial.