128 Minn. 422 | Minn. | 1915
Christian F. Yirgens was indicted, tried and convicted of murder in the first degree, the victim being John Steen.
John Steen was a middle aged farmer residing upon a farm about a half mile east of the village of Triumph, Martin county, this state. His home had been there for many year’s. About 10:30 o’clock in
The defendant was a farmer, 37 years of age. He owned a valuable 160-acre farm, adjoining John Steen’s on the east and had resided thereon for eight years prior to the homicide. He had been married about two years, and his wife was 21 years old. Evidence was adduced tending to show that defendant considered John Steen meddlesome and disposed to injure him; that to Steen’s interference he attributed his failure to marry a certain woman previous to his engagement to his present wife; that he ‘believed Steen let loose a stallion owned by defendant whereby one of his geldings was injured; that, in both a criminal and civil proceeding against defendant, Steen had been a witness for the prosecution; and that defendant had made threats that John Steen ought to and should feel the effect of defendant’s guns.
True, some of these threats were remote, and there was also testimony of neighborly acts between the two, such as Steen going on defendant’s bond when under arrest for another affray, lending money back and forth, and that defendant oiled Steen’s windmill, and let him hire a work horse. But defendant admittd that there was no intimacy between the families, or friendly visits. Defendant’s dwelling was about half a mile almost directly east of Steen’s hog-house. The hog-house was evidently roomy and modem. It had four windows. It was divided up into pens, 8 feet by 10 feet in size, with a passage running north and south between them. The pen wherein Steen was found was directly in front of the south window on the west side. Opposite, on the east side, was a window.
On May 8, when the murder was discovered, the county attorney, sheriff and others in the community began to search for clues which might detect the murderer. Tracks from a person running, and wearing number 10 rubber boots, led south from the hog-house over a few rods of recently cultivated ground to a strip of sod where was a row of willows. They could be traced no further. In the afternoon of that d'ay defendant was seen driving a pulverizer, or disc-harrow, in a line from his bam, a few rods south of his house, towards the Steen farm and nearly opposite to the buildings thereon. The ground was not in fit condition to be worked, being wet and soggy. After one or two turns he unhitched and took the horses to the bam. About that time the sheriff with some other persons drove up to defendant and stated that they were collecting the guns from the neighbors to see whether any clue to the criminal might thereby be obtained. The testimony is that defendant at first appeared to be very nervous. He denied that he had or ever had anything but a shot-gun. The next day the sheriff again drove up to defendant’s
May 17, the sheriff, a private detective, a court reporter, and a driver came to defendant’s home and arrested him. He resisted so vigorously that it required the combined strength of the four men to place handcuffs on him. He was placed in the jail at Fairmont. In the meantime his nephew, Fred Eeim, had been induced to come from near Albert Lea to Fairmont to aid the authorities. Fred Eeim was about 20 years of age. In August, 1912, he came from his home in Oklahoma to visit relatives in Minnesota. He assisted defendant a few days in stacking, went in company with him to the state fair, then helped a day or two in threshing, and made short stays later, one being in February, 1913. Eeim knew.that defendant had owned the Colt pistol but not the Savage. He testified that defendant always carried the Colt pistol wrapped in a red bandanna handkerchief, in his left hand trouser pocket; that he had expressed the wish that John Steen might feel its effect; and that he harbored ill-will towards Steen, believing himself wronged by him. At the instigation of the sheriff and officials, Eeim visited the defendant and informed him that several hundred people were searching his premises for fire-arms, that they intended to procure a powerful dip needle by which steel could be detected even when hid four feet under the ground, and suggested that defendant better tell him, Eeim, where the gun was hid so that he might carry it away and remove the incriminating evidence. After a long interview Eeim was told that the pistol was hid near a certain fence post on the south line of the farm. That night the sheriff, county attorney and Eeim drove out to the farm and found the Colt pistol at the spot indicated, greased and wrapped in a piece of old heavy underwear. The next evening Eeim had another interview with defendant and then succeeded in ascertaining where the ammunition was hid. Guided by this information, a search was made the following day, and, along the line where defendant was seen discing on the afternoon of May 8, there was found, in a fence-post hole, a beer bottle and, in another post hole
In September following a young man, Thaxter Edman, son of the farmer occupying tbe farm immediately south of defendant’s, was building a fence north to join tbe line fence. Tbe post in tbe line fence, at tbe point where tbe new fence was to join, bad rotted ■off near tbe ground and was supported only by tbe wires to which it was attached. Tbe young man undertook to bore a new post bole at tbe side of tbe old. Tbe auger struck a bard substance some eight inches down. This proved to be a 32-caliber Savage automatic pistol. It bad been greased and wrapped in a red bandanna handkerchief and ;a piece of underwear of tbe same kind found wrapped around the •Colt. Both pistols were found under tbe same line fence. Tbe one near tbe first or second post east of a ditch and tbe other about tbe ¡same distance west. Tbe defendant gave as an excuse for having ■denied ownership of any pistol or revolver, and for having bid tbe Colt gun and tbe cartridges, that be was afraid their possession would cast suspicion upon him. He admitted having ordered tbe ''Colt from Sears, Roebuck & Co., a Chicago catalogue bouse, in 1911, .and tbe proof was plenary that be bad done so. But be denied having bought, owned or bid tbe Savage pistol.
As stated above tbe evidence amounts almost to a conclusive demonstration that tbe bullet which killed John Steen was fired from tbe ■Savage pistol found by Thaxter Edman. It was therefore very important to trace tbe purchase or ownership thereof to defendant. His father’s name was O. Yirgens and he lived near tbe village of Welcome, 8 or 9 miles from defendant’s farm. Tbe state claims to have established that defendant, on February 22, 1912, receipted for •an express package in Exhibit 31, tbe receipt book of tbe express •company kept in its office at Welcome. Tbe package was of tbe ■same weight substantially as tbe package in which tbe Colt was ■expressed to him. Tbe middle initial of defendant’s name does not ¡appear in either tbe address or signature in Exhibit 31. But, from tbe testimony of persons familiar with defendant’s bandwriting and from a comparison of bis admitted signatures, tbe conclusion is ■clearly warranted that defendant receipted for tbe package at Wei-
The errors assigned and urged as ground for reversal relates (1) To rulings upon the admission of evidence tending to show that the Savage pistol, Exhibit 20, was in the express package-receipted for by C. Virgens in February, 1912; (2) permitting-witnesses to testify to the manner of speech and appearance of defendant; (3) allowing the county attorney to so cross-examine defendant that the jury learned that Mrs. Virgens could disclose facts-bearing directly and almost conclusively upon defendant’s guilt or innocence; (4) misconduct of the county attorney; and (5) errors-in the charge.
Fred Brotzman, for seven years in the employ of the John M. Smythe Merchandise Co. of Chicago, Illinois, was called by the-state and testified that he was in charge of the sporting goods department of the company, and that it kept a record of every firm-arm sold. That he had this record for the month .of February, 1912, in. court, being Exhibit 26. ITe fully explained the company’s system of bookkeeping and identified Exhibits 24, 25 and 27 as parts-thereof. Exhibit 24 was an index card, Exhibit 25 the cash book and Exhibit 27 the express receipt for goods shipped out. By numbers, from the system he could trace a firm-arm from one to the other of these records. Exhibit 31 was the American Express Company’s delivery receipt book, signed by C. Virgens ás above stated, and Exhibit 32 the monthly report of the express agent at Welcome-accounting for the package to the Great Northern Express Co., the-receiving express company at Chicago. The testimony of Brotzman disclosed that the John M. Smythe Merchandise Co. did a very
Permitting witnesses to testify as to tbe manner of speech and appearance of defendant under circumstances where an accusing conscience would be likely to betray evidences of guilt was not error. 1 Dunnell, Minn. Digest, § 3315.
Defendant took tbe witness stand, denied guilt, and asserted that on tbe night of tbe homicide be was at home. It was but legitimate cross-examination to bring out in whose company he spent the night. He maintained that be was continuously in bis wife’s presence. By tbe cross-examination of tbe state’s witness, Fred Beim, and by defendant’s direct examination, his counsel sought to show that criminal intimacy existed between Mrs. Virgens and Beim, that Beim might be tbe murderer and that it would serve tbe dark desires of tbe two to fasten tbe crime upon defendant. This was an attempt to justify tbe nonproduction of tbe wife as a witness, and to leave tbe impression with tbe jury that be was tbe victim of an atrocious plot. In this situation, tbe state by failing to request his consent to use Mrs. Virgens as a witness would admit defendant’s aspersions. We have lately held in State v. Roby, supra, page 187, 150 N. W. 793, that it was not reversible error to permit tbe state to request tbe defendant in a criminal prosecution to consent to bis wife testifying. Tbe case at bar is much stronger. Indeed, the course defendant and bis counsel pursued made it permissible, if not almost
Defendant accuses the prosecuting attorney of misconduct in several respects. We have already considered the complaint in respect to the cross-examination of the defendant. In opening the case to the jury the county attorney stated that the state would prove that defendant told Fred Reim that his wife had told the county attorney everything she knew. Fred Reim so testified, without objection, and was not even contradicted by defendant. In the closing address the county attorney said: “The defendant tells you that he was home on the night of May 7. Now, gentlemen, there are only two persons who know whether he was home or not. He was living there alone with his wife. He has gone on the stand and given his testimony. We would like to have had the testimony of the other person who was there and knows whether he was home or not.” We have already considered the cross-examination of the defendant, revealing the whereabouts of his wife and his claim that he was with her when the homicide occurred, proper; that being so, the remarks quoted are not outside the record. In addition to the authorities cited in State v. Roby, supra, sustaining the course pursued by the county attorney we may give, Wharton, Criminal Evidence (10th ed.), § 435a, where it said “where the wife of accused is by statute made a competent witness, comment may be made on his failure to call her.” The wife is not rendered incompetent by reason of our statute (section 8375, G. S. 1913). In re Holt’s Will, 56 Minn. 33, 57 N. W. 219, 22 L.R.A. 481, 45 Am. St. 434. Also State v. Millmeier, 102 Iowa, 692, 72 N. W. 275; Commonwealth v. Weber, 167 Pa. St. 153, 31 Atl. 481.
The reference by the prosecutor to the fact that, because of supposed local prejudice, defendant had obtained a change of place of trial from Martin to Faribault county, though out of place perhaps, should not reverse the judgment in view of defendant’s examination of the jurors on that score and the court’s admonition to the jury not to let that circumstance in any manner weigh against defendant.
The trial court gave a clear and comprehensive charge. The arguments of counsel evidently occasioned and justified this instruc
• We have endeavored to examine the record, including exhibits, with the great care which the gravity of the case demands. The evidence is wholly circumstantial, but we entertain no misgivings that the jury went wrong. No prejudicial error is found in the assignments not herein specially mentioned. Our conclusion is that the conviction must stand.
Judgment affirmed.
