78 Minn. 362 | Minn. | 1899
The defendant was convicted of manslaughter in the second degree, upon the following indictment:
“John Smith is accused by the grand jury of the county of Kittson, in the state of Minnesota, by this indictment, of the crime of manslaughter in the first degree, committed as follows: The said John Smith, on the 8th day of March, A. D. 1899, at the village of St. Vincent, in the county of Kittson and state of Minnesota, did then and there wilfully, unlawfully, and feloniously, and in the heat of passion, and in a cruel and unusual manner, kill a human being, to wit: one George Bates, by then and there striking him, the said George Bates, with a blunt and dangerous weapon, a more particular description of w7hich weapon is to the said grand jury unknown, then and thereby inflicting upon the head of him, the said George Bates, wounds, from which wounds the said George Bates died at the village of Pembina, in the county of Pembina, state of North Dakota, on the 9th of March, A. D. 1899; contrary,” etc.
“Ed. Chase challenged for actual bias. Challenge denied. [Then follows the examination of juror upon the cause of the challenge.] Challenge submitted. Sustained by the court.”
This can admit of but one reasonable construction, viz., that no triors were appointed, and both parties consented that the challenge should be tried by the court, which may be done in cases not capital. G. S. 1894, § 7374.
2. The second assignment is that the court erred in disallowing defendant’s sixth peremptory challenge. The correctness of the ruling depends upon the question whether the indictment charges manslaughter or murder in the first or second degree, they being the only two crimes in which the defendant is entitled to more than five peremptory challenges. It is not and could not be claimed that the indictment charges murder in the first degree. The only definition of murder in the second degree having any bearing on the present case is:
“Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another,, but without deliberation and premeditation.” G. S. 1894, § 6438.
Counsel’s argument on this point is wholly based on the peculiar language of the indictment, which it must be' admitted is not in the most approved form. They argue that “wilfully killed” means the same as “with a design to effect death.” In criminal law, at least, the one is not the equivalent of the other. A man may wilfully do an act which causes death, and yet have no design to effect death.
3. The next assignment is that the court erred in overruling defendant’s objection to any testimony being introduced under the indictment, “for the reason that the same did not state a public offense, and alleges an impossible charge.” This is based on a mere verbal criticism on the allegations as to dates. In contemplation of law, the defendant committed the crime in this state on the 8th, although the deceased died in the state of North Dakota on the 9th,
4. On the trial the state introduced as witnesses two' young women, who on the night of the alleged homicide occupied a room in the second story of a hotel distant about 57 feet from defendant’s saloon (near which the deceased received the injuries of which he died), and who testified that, on being awakened by the noise outside, they looked out of a ventilator in the storm window, and saw and heard an altercation and scuffle between two men on the sidewalk, the voice of one of whom they recognized as that of the defendant. One of the evident purposes of tlie cross-examination of these witnesses was to impeach their testimony by eliciting facts tending to show 'that they could not have seen or heard what they claimed to have done from their position at the window. There was also introduced in evidence a photograph of the locus in quo, accompanied by measurements of the distances between the various points referred to in the testimony of the young women. The state then introduced a witness who had made two experiments to ascertain how far and what points he could see from this same window, and, against the objection of the defendant, was allowed to testify as to the results, which tended to corroborate the testimony of the young women as to what they saw and heard. One of these experiments was made a few days after the alleged homicide, by looking through the ventilator in the outer or storm window, precisely as the young women testified to having done. The other was made shortly before the trial, after the storm window had been removed, and the witness raised the permanent window two or three inches, and looked and listened through the opening-. «The only evidence as to the result of the second experiment was that the witness distinctly recognized the defendant’s voice while conversing in an ordinary tone of voice in front of his house, — a distance as great as or greater than that at which the girls testified to have heard it.
The admission of the evidence as to the results of these experi1 ments is assigned as error. This was not prejudicial error, for at least two reasons: First. The evidence did not tend to establish any fact that was not already self-evident from the photographs and measurements in evidence. Second. The defendant had the
5. The twelfth and thirteenth assignments of error are that the court erred in denying the defendant’s motion that the state be required to call and examine Lina Brandon and Earl Jarvis, whose names were indorsed on the indictment. From the record it appears that the motion was not that the state should produce them in court, so that defendant might examine them as his witnesses, but that it should be required to examine them as its own witnesses, and the sole ground upon which the motion was based was that their names were on the back of the indictment. It is a sufficient answer to this point to say that it never was the rule that the prosecutor was bound to call all the witnesses on the back of the bill. All that was ever required, even at common law, was that he should present them in court, in order that the prisoner might examine them as his own witnesses if he desired. 1 Archbold, Crim. Pr. & PI. 583. Although perhaps not material, it may be added that it appears that Jarvis was present, and was in fact called and examined by the defendant; also that Brandon was defendant’s sister-in-law, and a member of his family.
What has been said fully disposes of the assignments of error, but. in their brief counsel argue them upon another ground, to wit, that it was the bounden duty of the state to call all the eyewitnesses of the transaction or res gestae. The old rule thus invoked had its origin at a time when a party accused of a felony was not permitted to introduce witnesses at all. Hence the justice of the rule adopted by the judges that the prosecution must introduce all
6. The defendant further contends that the court erred in charging the jury that
“If the defendant, without it being necessary to defend himself, wilfully pushed the person killed off the sidewalk, or struck him and knocked him down, so that he received the injuries from which he died, it would be manslaughter in the first degree.”
The court did not so charge. What he charged was that it would be manslaughter in the second degree. The only ground upon which it is claimed that the charge was erroneous is that there was no evidence upon which to base it. But this assignment of error cannot be considered, because there was no sufficient exception to the charge to raise the point. The only exception which, by any possibility, could refer to it, was, “Defendant excepts to the court’s charge with reference to the degree of manslaughter.”
7. The only other assignments of error worthy of consideration may be considered together, as they go to the sufficiency of the evidence to justify the verdict. We shall not attempt to do anything
It is practically undisputed that on the afternoon of the 8th the deceased came into defendant’s saloon with a sample case containing samples of cloth for men’s garments, and also with two hats, which he wished to sell; that he sold one of them for a dollar to a person who was in the saloon, and traded the other to the defendant for the agreed consideration of a bottle of whiskey; that he was so intoxicated that he fell out of his chair, and lay asleep on the floor, until about 11 o’clock, when defendant aroused him, and told him that it was time to leave, as he (defendant) wished to shut up; that the deceased then requested defendant to give him his bottle of whiskey; that defendant refused to do so, giving as a reason that the deceased already had enough, and that he would give it to Mm some other time; that deceased then demanded the return of the hat; that, upon defendant’s refusal to return it, the deceased attempted to take it by force; that thereupon the defendant ejected the deceased by force, and fastened the door behind him; that deceased refused to leave, but continued on the sidewalk in front of the saloon, pounding on the door and window, swearing and demanding his hat. This was the last that was seen of the deceased before he received the injuries of which he died.
Then followed the testimony of the two young women, already referred to, who, on being aroused by the noise on the sidewalk, got up, and looked out of the window. It was too dark for them to recognize any one by sight, or to see distinctly what occurred, but Ihey testified to seeing the figures of two men on the sidewalk engaged in an altercation of words and in a scuffle; that they distinctly recognized the voice of one of the men as that of the defendant, with whom they were quite well acquainted; that they saw one of the men fall down and get up again, and soon fall down again, after which he did not rise. Their testimony has the air of truthfulness and probability. The next scene in the transaction disclosed by the evidence is that, shortly before 12 o’clock, Lina Brandon, the sister-in-law of defendant, and a member of his family, went over to the house of a neighbor named Hanson, and requested him to come over quick, that “Bates was nearly killed.” Hanson got up, and went
All the physicians who took part in the autopsy testified that they found that deceased had sustained two fractures of the skull, a'nd, on the same side, a fracture of the cheek bone; that, in their opinion, these injuries were caused by a blow or blows from some blunt instrument; and that these injuries caused his death. It is true that on cross-examination they testified that the injuries might have been caused by the deceased’s falling from the sidewalk into the street under certain special circumstances, as, for example, if he was at the time in very rapid motion, and fell upon some hard object with very great violence. But it is evident that they admitted this as a mere possibility, and not a probability, — a fact which, in view of the severity of the injuries, would be apparent to any layman, especially where the injured person was at the time intoxicated, and consequently his muscles relaxed.
Any one accustomed to weighing evidence cannot read the record without being fully impressed with the conviction that the defendant and his family must have known more about the facts of the case than is disclosed by the evidence. Neither his wife nor his sister-in-law were called as witnesses. His own testimony was in some respects highly improbable, and on a number of material points flatly contradicted by other witnesses. He denied or evaded the trade of the hat for whiskey, — a fact which was testified to by some of his own witnesses, and is corroborated by many of the surrounding circumstances. According to his testimony, he did not at any time during the evening go out of the building after he ejected the deceased, not even to ascertain how badly he was injured, or to
Order denying a new trial is affirmed, and the cause remanded for judgment and 'sentence in accordance with the verdict.