148 Minn. 368 | Minn. | 1921
The defendant Orrin Shea, indicted as John Doyle, was convicted of murder in the first degree for the killing of Alice M. Dunn, and appeals. Several others were indicted with him. An appeal involving the conviction of one of the defendants is reported in 140 Minn. 308, 168 N. W. 2.
One question is whether the defendant Shea was the third man, sometimes referred to in the evidence as John Doyle, present at the lrilling with the defendants Redenbaugh and MeCool; another, whether the court erred in permitting the state to cross-examine and impeach Redenbaugh, its witness, upon the identity of Doyle and Shea; another, whether the evidence sustains a finding that Shea, if the third man, was concerned in the killing so as to be guilty of murder, or was only guilty of burglary; and another, whether the court properly refused a requested instruction bearing upon the result which should follow if the defendant entered into an arrangement to commit burglary and was without knowledge of a plan on the part of his codefendants to commit murder.
The killing occurred about 1:30 in the morning. Redenbaugh was a witness for the state and testified to the details. At the time of the trial he was confined in the state prison, under conviction for killing a policeman in Minneapolis two or three days before the killing of Mrs. Dunn. He testified that McCool was present, and that there was a third man, but that the third man was not Shea. The third man he had known for some weeks or perhaps months. He knew him as John or Johnny, knew that he went under different names, and knew that he was called Doyle. He was under the impression that he had been called “Tacoma J o'hnny.” The defendant had lived at Tacoma and there was evidence that about St. Paul he was sometimes known as “Tacoma J ohnny.”
Redenbaugh and his wife were married in Nebraska on February 17, 1917. Immediately afterwards they lived in Kansas City, Missouri. Redenbaugh came to St. Paul in the early part of April, and with him came Frank McCool and the third man. They stopped at various hotels or rooming-houses in St. Paul or Minneapolis. About April 17 Mrs. Redenbaugh came. She and her husband stopped for a few days at Chickett’s Place on West Seventh street. This was a saloon and restaurant and rooming-house. Later they were at Minneapolis, and on the day before the killing Redenbaugh and wife and McCool and wife took rooms at another rooming-house in St. Paul. Mrs. Redenbaugh testified that she knew Shea in Kansas City by the name of Doyle; that he stopped for a time at the apartment of herself and husband; that when she came to St. Paul she saw him about Chickett’s place; that Moore was there; that on the afternoon of the day before the killing Shea was about the rooms where the Redenbaughs and McCools were stopping; that Redenbaugh, McCool and Shea were together; that she and her husband and the McCools went out and took their evening meal together; that later in the evening Shea was around again; that some time after 11 o’clock Redenbaugh, McCool and Shea left the rooms, saying they were going to see a
Chickett testified that Redenbaugh and wife and' McCool and Moore and Shea were about his place, and that Redenbaugh used to call Shea “Johnny Dóyle.” The defendant had been around with- Redenbaugh and McCool before. There is other evidence that Shea was in St. Paul at the time of the murder, and there is evidence that when he was arrested in July, 1920, in Tacoma, he admitted that he was in St. Paul at the time of the murder. He disclaimed any part in it. He gave the murder and the suspicion cast upon him in connection with it as the reason for not coming to Tacoma before. He said, according to the Tacoma officer, that he had been living in Missouri; that he stayed away from Tacoma because of the Dunn murder and the suspicion attaching to him in connection with it; that he knew they were looking for him, and that “the bunch keeps me posted.”
The credibility of the witnesses and the inferences to be drawn from their testimony were for the jury. It could justifiably find that the defendant was the John Doyle who came with Redenbaugh and McCool from Kansas City; that the three were together about St. Paul; that they left the rooming-house together the night before the murder; that they went together to the home of Mrs. Dunn, and that the defendant was the third man present at the killing.
The authorities generally hold that the trial court in its discretion may permit a party surprised by the testimony of his witness to cross-examine him; and some, but by no means all, hold that he may impeach him by showing contradictory statements. See 2 and 5 Wigmore, Ev. §§ 902-906; 5 Jones, Ev. § 853, et seq. The Minnesota rule permits cross-examination and impeachment within the sound discretion of the trial court. State v. Johnson, 12 Minn. 378 (476), 93 Am. Dec. 241; State v. Tall, 43 Minn. 273, 45 N. W. 449; Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L.R.A. 418, 40 Am. St. 349; Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L.R.A.(N.S.) 729, 8 Ann. Cas. 1024; State v. Sederstrom, 99 Minn. 234, 109 N. W. 113.
The county attorney knew of Redenbaugh’s testimony in the Dunn and Moore cases. He had his word that if a witness he would tell the truth. It is true that Redenbaugh told 'him that Shea’s photographs did not look to him to be pictures of the third man. But under the circumstances a fair prosecutor could press Redenbaugh with the purpose of refreshing his recollection, or of getting a possible correction or change of his testimony. Redenbaugh knew the fact. The county attorney was advised of his testimony tending to identify the defendant as the third man. He was justified in pressing the unwilling witness with the expectation of getting testimony in harmony with that formerly given, and, when he failed, the trial court under our rule, was justified in the exercise of a sound discretion in permitting him to impeach. Of course counsel, claiming the privilege of cross-examining and impeaching, must proceed in good faith.
The court very clearly charged the jury that the impeaching testimony could not be taken as substantive proof of the identity of Shea and the
We do not discuss the sufficiency of the evidence to make applicable the law as claimed by the defendant. It is clear that the evidence did not require a finding in harmony with Redenbaugh’s claim and that there was no error in refusing the instruction requested.
The charge was fair to the defendant and thoroughly clear. The trial, which occurred more than three years after the crime, was impartial and dispassionate throughout. Occasionally the prosecution pressed improper questions quite far enough, but the adverse rulings were prompt, and there was no material prejudice. The defendant had a fair trial.
Order affirmed.-