State v. ShupeState v. Shupe
- Reporters:
- , ,
- Before:
- Knutson
Appeal from a judgment of conviction and an order denying a motion for a nеw trial following conviction by jury verdict pursuant to an information charging defendant with the offense of burglary under Minn. St. 609.58, subd. 2(3), and “with further reference to Minnesota Statutes, Sectiоn 609.05, constituting LIABILITY FOR CRIMES OF ANOTHER.”
It is asserted on appeal that the conviction must be reversed because it rests upon the uncorroborated testimony of accompliсes; the trial court failed to instruct as to the accomplice-corrоboration rule, § 634.04; erroneous introduction of prejudicial evidence relating to crimes other than that with which defendant was charged; and prejudicial argumеnt by the prosecuting attorney in final argument to the jury.
It appears that defendant, a middle-aged man, on the night of November 17,1969, met three youths, one of whom, Walter Briggs, stated that he and another boy had burglarized the office of the Lorillard Company and had taken from it several decks of playing cards and some display packs of cigarettes. Thereafter, the other youths — James Berg and David Riley, about 14 years of age — went to the Lorillard address with defendant, James DeWayne Shupe, in his automobile. Berg and Riley entered the premises and stole several candy rolls. Defendant waited in the car outside, and upon their return they gave him some of the stolen candy. Later that evening the youths, with another friend, re
turned to the Lorillard office and stole more goods. The next morning the same youths deviated from their paper routes and again entered the Lorillard office.
Defendant’s claim of error based оn the court’s failure to instruct as to the accomplice-corroborаtion rule might be disposed of because of the failure of defense counsеl to request instruction. Cole v. State, 289 Minn. 503, 183 N. W. 2d 290 (1971); State v. Jones, 277 Minn. 174, 152 N. W. 2d 67 (1967); State v. Soltau, 212 Minn. 20, 2 N. W. 2d 155 (1942); State v. Quinn, 186 Minn. 242, 243 N. W. 70 (1932); State v. Lawlor, 28 Minn. 216, 9 N. W. 698 (1881). The claim that there was prejudice beсause of the introduction of other crimes might be properly disposed of by оur statements in State v. Wofford, 262 Minn. 112, 114 N. W. 2d 267 (1962). We cannot escape the conclusion thаt the statement of the prosecuting attorney in final argument was so prejudiciаl as to require a new trial. In his argument, the prosecuting attorney told the jury:
“Now, as I mеntioned in my opening statement, I was going to call a series of witnesses. Several of the witnesses I did not call * * *, this was due to unexpected illness and hospitalization so it’s unfortunate that this supplementary testimony could not come in, but things like that happen.”
We cannot assume that the jury was not influenced by the prosecutor’s reference to the asserted fact that there was other testimony bearing upon defendant’s guilt which he was prevented from submitting because of “unexpectеd illness and hospitalization.” State v. Zecher, 267 Minn. 497, 128 N. W. 2d 83 (1964); State v. DePauw, 243 Minn. 375, 68 N. W. 2d 223 (1955). The fact that a cautionary instruction was given with reference to this argument does not make it less prejudicial. In Stаte v. Reardon, 245 Minn. 509, 513, 73 N. W. 2d 192, 195 (1955), we said:
“* * * Where * * * the impact of the prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not properly a part of the case, it is taking too much for granted to say its effect can be removed by an instruction from the court.”
See, also, State v. Silvers, 230 Minn. 12, 40 N. W. 2d 630 (1950); State v. Gress, 250 Minn. 337, 84 N. W. 2d 616 (1957); Chicago, M. & St. P. Ry. Co. v. Newsome, 174 F. 394 (8 Cir. 1909).
Reversed and new trial granted.