144 Minn. 32 | Minn. | 1919
The defendant was convicted of grand larceny in the second degree upon an indictment charging him with the stealing of two pigs of the value of $40, the property of one Deverell, and he appeals.
“9132. No indictment shall be found without the concurrence of at least twelve grand jurors. When so found, it shall be indorsed, ‘A true bill/ and the indorsement signed by the foreman, whether he be one of the twelve concurring or not. If twelve grand jurors shall not concur in finding an indictment or presentment, the charge shall be dismissed, but such dismissal shall not prevent its being again submitted to a grand jury as often as the court shall direct. When an indictment is found, the names of the witnesses examined before the grand jury shall in all cases be inserted at the foot of the indictment, or indorsed thereon, before 'it shall be presented to the court.”
“9180. The indictment shall be set aside by the court in which the defendant is arraigned, upon his motion, in any of the following cases:
“1. When it shall not be found, indorsed, and presented as prescribed in the subdivision relating to grand juries;
“2. When the names of the witnesses examined .before the grand jury are not inserted at the foot of the indictment or indorsed thereon.”
The defendant urges that these two statutes together made it mandatory upon the court to set the indictment aside. These statutes have been on the books for many years. They have not often been before this court.
In State v. Beebe, 17 Minn. 218 (241), it was held that the affidavit of a grand juror will not be received to impeach the conduct of the grand jury by proving the making of a false indorsement.
In State v. Hawks, 56 Minn. 129, 57 N. W. 455, it was held not necessary to indorse the names of witnesses, who> while other charges were
If there is to he such conclusive presumption in that sort of a case, we see no reason why the same conclusive presumption should not obtain in any case where the names of witnesses are in fact indorsed.
These statutes must be given effect according to their meaning. If the names of no witnesses are indorsed, the statute clearly requires that the indictment be set aside. But suppose 100 witnesses were examined and one was omitted from the indorsement. Is it the intent of this statute that the omission should be fatal to the indictment even though the testimony of the omitted witness was in fact immaterial? Or would the court be required to institute an inquiry to determine the materiality of the evidence of the omitted witness ? It seems to us that neither result is contemplated by the statute. In the investigation of a crime many witnesses must of necessity be called who in fact give no consequential testimony. We do not think that the statute means that an indictment is fatally defective where the grand jury in good faith indorses the names of the witnesses whose testimony is considered material and omit the names of immaterial witnesses from the indorsement. 'Such good faith is always presumed. As held in the Hawks case the statute
The views just stated are those of- a majority of the court. Justice Quinn and the writer do not concur in them. The argument is made with force, and with authority to support it, that the words “shall in all cases be inserted,” in section 9133, requiring the indorsement of the names of the witnesses, are directory, and it is convenient to consider them so; but in their opinion the words, “shall be set aside,” in section 9180, stating the result which shall follow from a failure to observe the requirement of section 9133, are a command of the legislature which the courts should obey, and it seems to them that, if the legislature should now seek to express its intent that the indictment should in fact be set aside when the names of witnesses are not in fact indorsed as required, they hardly could use words more apt to express their intent than those which are now held insufficient.
Defendant further claims that it was not shown that 'the value of the pigs was as much as $25 when stolen, and therefore a verdict of grand larceny in the second degree could not be found. The evidence is far from satisfactory and so the trial court thought. From an examination of it we think that by patching it together the jury might conclude that the value of the pigs was as much as 17 cents per pound and that their combined weight was as much as 150 to 160 pounds. We cannot say that the finding of the jury upon value is not sustained.
“19. I charge you that the evidence upon which the state is seeking to convict the defendant in this case consists largely of what is known in law as 'circumstantial evidence.’
*37 “20. In order to warrant a conviction upon circumstantial evidence it is not alone sufficient that said evidence is consistent with the guilt of defendant but it must exclude every other hypothesis.”
Both of these requests were refused and error is claimed. We have mentioned that there was evidence claimed by the state to constitute an admission of guilt and we now recur to it. After the indictment of the defendant he went with the deputy sheriff to the store of one Sterling; a tradesman of the city, to secure him as a bondsman. In his testimony the deputy refers to a talk between the defendant and Sterling, which he did not hear. Then he says:
“When they got through Sterling called me over. He wanted me to go to the county attorney and see if they would not drop the case, said that John offered to give him the pigs back if they would drop it and not have any further trouble about it; John was standing there. I asked him if that was so. He said: ‘Yes.’ ”
Sterling testified:
“I don’t know as it was exactly at the time he was in there or it was a little later. I know I tried to persuade John — Mr. Rickmier — to turn those hogs back to Mr. Deverell. I told him I thought it would be easiest way to stop the trouble. He said he wouldn’t do it because he had bought the pigs and that would intimate he was guilty. I tried to tell him I thought it was the easiest way out of it.
“Q. You say Mr. Rickmier refused to do it?
“A. Yes, sir.
“Q. At any time in any conversation there with Mr. Rickmier in the presence of Mr. Barden did Mr. Rickmier at any time say he would give any pigs back ?
“A. Not to my knowledge.
“Q. Did you hear any such conversation?
“A. When I talked to him I know he said he wouldn’t do it.
“Q. Why?
“A. He said they were his; he wouldn’t turn them back. I tried to advise him to turn them back. I thought it was the easiest way out of it — out of his trouble.”
He declined to swear that the proposition to give Deverell the pigs
The defendant, referring to his talk with Sterling, said:
“He says the best way to do — 'Sterling made this remark himself — ■ he says, the best way to do is to get together and drop it if you can.
“Q. He wanted to save you trouble, did he?
“A. He wanted to save trouble. He said it will save trouble if you can drop it. I says: T won’t do any such a thing as that. It will prove I stole the pigs if I do.’
“Q. Did you tell him at that time that you bought them?
“A. Yes, sir.”
The jury was justified in taking this so-called admission, which the defendant denied making, for what it was worth. It was not a particularly strong circumstance. The case was after all substantially one of circumstantial evidence notwithstanding the talk of a settlement of the trouble after the indictment. An instruction upon circumstantial evidence should have been given. It may well enough be that the circumstantial evidence in a case may be of such minor importance that a charge upon it need not be given. This is not such a case. The instruction need not have been given in the precise words of the request, but the defendant was entitled to have the jury’s attention called to the circumstantial nature of the testimony and as to the rule applicable to its consideration. The omission may have been inadvertent but the instruction was distinctly asked.
The views stated are those of a majority of the court. Justice Hal-lam is of the opinion that the refusal was not error. His view is that, where the court charges the jury that guilt must be established beyond a reasonable doubt, a further instruction that the proof must exclude every other hypothesis than that of guilt adds very little of practical value and that probably no juror would recognize a distinction between the two forms of instruction. That some courts have held that failure to give such
Order reversed.