145 Minn. 303 | Minn. | 1920
Defendant appeals from a judgment convicting him of the crime of keeping a house of ill-fame and assignation. He urges as grounds for a new trial: (1) That improper evidence was received over his objec-
tion; (3) that he is not shown to have had knowledge of the evil practices indulged in on his premises; (3) that the verdict is not justified by the evidence, and (4) that it was error to send the jury to view the premises without permitting him to accompany them.
Defendant was the proprietor of the Eevere Hotel in the city of Minneapolis. . The office of the hotel, a café and a saloon were located on. the ground floor of the building, and were connected with each other
Defendant asserts that some of the testimony to the effect that prostitutes frequented the place related to a time before he became its proprietor and was inadmissible for that reason. No objection was made on that ground at the time the testimony was received, and no claim was then made that defendant was not the proprietor at the time referred to. The present contention seems to be an afterthought based on the fact that defendant’s hotel license was issued on September 12, 1918, and that the testimony in question related to the time of the State Fair held the first week in September ’and to a period in August. At what
Defendant was charged with keeping a house of ill-fame and assignation on the .twenty-eighth day of December, 1918. A woman who had been sentenced to the workhouse in the latter part of January, 1919, testified that in the early part of that month she had slept at the hotel with a man not her husband every night for a period of about two weeks. Defendant challenges this testimony, on the ground that the occurrence took place after the daj;e charged in the indictment. The offense charged consists of a course of conduct continuing in its nature, and evidence tending to show the character of the place shortly before and shortly after December 28 was competent as a basis for an inference that its character was the same on that date.
It appeared from the cross-examination of a witness who had testified that he knew the reputation of the house and that it had the reputation of being a house of assignation, that he had received his information from government employees who did not live in that locality and from members of the league who had places of business in that locality and were there every day, but lived elsewhere. Defendant moved to strike out his testimony, on the ground that he was not competent to testify to the reputation of the place, and insists that the court erred in denying this motion. People who were at the 'hotel, or in its vicinity, •frequently for extended periods were in position to know its character, although they did not live in the neighborhood, and the court did not abuse its discretion in refusing to strike out the testimony. State v. Lee, 80 Iowa, 75, 45 N. W. 545, 20 Am. St. 401.
While some of the other rulihgs are questioned, we find none of which defendant has cause to complain or which-require special mention.
The decisions in other jurisdictions are conflicting. Several courts hold that allowing a view in the absence of the defendant is reversible error. The courts which take this position usually assign as the reason therefor that the defendant has the absolute right to be present throughout the trial and whenever evidence of any sort is received, and that a view of the premises by the jury is a part of the trial because ordered by the court, and is a taking of evidence because the information obtained will be used in arriving at a verdict. Benton v. State, 30 Ark. 328; Foster v. State, 70 Miss. 755, 12 South. 822; People v. Bush, 68 Cal.
Dean Wigmore in his learned treatise on Evidence, after discussing the history and purpose of the constitutional right of confrontation, takes the position that this right applies and was intended to apply only to testimonial evidence, that its purpose .was to secure a proper opportunity for cross-examination, and that it is not violated by allowing the jury to view the premises in the absence of the defendant. He also remarks in substance that the argument that the defendant has the right to he present while the jury are viewing the premises, for the reason that the view is a part of the trial and the defendant is entitled to be present at all parts of the trial, could be advanced equally well to give the defendant the right to be present while the jury are deliberating over their verdict in the jury room as that is equally a part of the trial. 3 Wigmore, Ev. § 1803. In the notes appended to this section most of the decided cases bearing on the question are cited.
In People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L.R.A. 368, a capital case, the New York court, after an exhaustive review of the authorities and of the principles involved, reach the conclusion that allowing the jury to view the premises in the absence of the defendant, does not infringe his right to be confronted by the witnesses nor his right to be present at the trial, and add:
“It appears to us that the more rational and reasonable construction to be given to the provisions of the section is that the view is not the taking of testimony within the meaning of the bill of rights, but that the sole purpose and object of the view is to enable the jurors to more accurately understand and more fully appreciate the testimony of witnesses given before them.”
The following decisions also support the rule that a view may be had in the absence of the defendant. Hays v. Territory, 7 Okl. 15, 54 Pac. 300; State v. Reed, 3 Idaho, 754, 35 Pac. 706; State v. Hartley, 22 Nev. 342, 40 Pac. 372, 28 L.R.A. 33; State v. Ah Lee, 8 Ore. 214; State v. Moran, 15 Ore. 262, 14 Pac. 419; State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103; Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 52 Am. DeC. 711; Commonwealth v. Salyards, 158 Pa. St. 501, 27
In Chute v. State, 19 Minn. 230 (271), this court said: “The view is not allowed for the purpose of furnishing evidence upon which a verdict may be found, but for the purpose of enabling the jury better to understand and apply the evidence which is given in court,” and held that an instruction which permitted the jury to use as evidence what they saw or learned at the view, was error. There seems to have been no subsequent criminal case in which the purpose of the view was raised or considered, but the rule above stated has been consistently followed and applied in civil cases ever since. Brakken v. Minneapolis & St. L. Ry. Co. 29 Minn. 41, 11 N. W. 124; Schultz v. Bower, 57 Minn. 493, 59 N.W. 631, 47 Am. St. 630; Northwestern Mut. L. Ins. Co. v. Sun Ins. Office, 85 Minn. 65, 88 N. W. 272.
The rule followed and applied by this court in respect to the purpose and use to be made of a view is in harmony with the rule adopted and applied by those courts which hold that the jury may be allowed to view the premises in the absence of the defendant without infringing any of his constitutional or statutory rights. Our Constitution provides:
“The accused shall enjoy the right * * * to be confronted with -the witnesses against him.” Article 1, § 6.
Our statute provides:
“If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he shall appear by counsel; but, if it be for a felony, he shall be personally present.” G. S. 1913, § 9200.
A careful consideration of these provisions and of the purpose intended to be accomplished by them as elucidated by their history and by the authorities cited, leads us to the conclusion, supported by the weight of authority, that a view of the premises by the jury in the absence of the defendant does not violate his right to be confronted by the witnesses against him nor his right to be present when his trial is had. On such a view care must be taken to see that the jury receive n'o information other than that obtained by looking over the premises, and any ex
The judgment is affirmed.