1 Reported in 292 N.W. 753. By verdict found guilty of carnal knowledge of a girl (his wife's sister) under 14 years of age, defendant appeals from the order denying his motion for a new trial.
To the asserted surprise of the state, the prosecuting witness denied guilt both for herself and defendant. In consequence, there was no evidence either of corpus delicti or defendant's guilt other than two confessions. One was a question and answer statement, signed by defendant without inducement of either threat of harm or promise of benefit, wherein he admitted guilt of the precise charge. He also gave a strongly corroborative, circumstantial history of his relationship with the girl over a considerable period. Therein he showed guilt not alone of the offense upon which he was subsequently tried, but also a later one of abduction. The latter, on his own statement, consisted of taking the girl away from her home on an automobile tour to distant parts, where for days she lived with him in a state of concubinage.
This statement, as narrative of events, presents an unusual amount of explanatory circumstance. It speaks with a degree of candor and spontaneity infrequent in such expressions. Therein defendant asserted that the parents of the girl had not told him to leave her alone. He went on to explain, "Well, I guess she [the mother] tried to keep her away from me, but she *Page 93 loved me so much she couldn't do it." It is significant that when the county attorney questioningly repeated, "She loved you so much she couldn't keep away from you?" defendant answered, "Yes." As first transcribed and typewritten, that answer was written "No." Defendant, before signing and in his own handwriting, changed the answer to "Yes."
The other confession was judicial or quasi judicial in nature. 20 Am. Jur., Evidence, § 479. When in municipal court for preliminary examination, defendant did much more than merely waive examination. The judge advised him that he was entitled to the services of an attorney. Thereupon defendant answered "that he did not want an attorney, * * * that he did not want a preliminary examination. * * * He said that he was guilty of the thing that he was charged with."
1. When, on the witness stand, the prosecuting witness declared her innocence of wrongdoing, the county attorney asserted surprise and asked leave to cross-examine and impeach. Granted leave to do so, he introduced a statement signed by the witness wherein she had declared that the wrongful act had taken place and that defendant was the other participant. In allowing the claim of surprise, the cross-examination and impeachment that followed, we find no error. The ruling was within the discretion of the trial judge under State v. Saporen, 205 Minn. 358, 285 N.W. 898. See also State v. Lemke,207 Minn. 35, 41, 290 N.W. 307.
If the trial judge suspected that both the girl and her mother were by perjury attempting to obstruct justice, that someone had done a finished job of "fixing" the witnesses for the state, there is in the record scant ground for disagreement. When a defendant finds himself in such a predicament, he must expect a liberal exercise of the court's discretion against him.
2. There is claim of misconduct. The extrajudicial statement of the prosecuting witness was in for the purposes of impeachment and no other. State v. Saporen, 205 Minn. 358,285 N.W. 898. The county attorney, in argument, urged it as affirmative evidence of guilt. In other particulars, he may have *Page 94 transgressed those rules of dignity and propriety to which prosecutors are subject. As matter of propriety, they should give to the jury only the facts and the reasonable inferences therefrom favorable to the state, leaving mere characterizations, especially those of invective, to the jury. The advocate's function is that of argument, not vituperation.
All that is the dictate also of good policy. The argument of understatement, in civil or criminal cases, with dignified and restrained, rather than vituperative, conclusion, always has more appeal than its opposite.
The trouble from defendant's standpoint is that the only exception taken to the state's argument limits the scope of review. That exception assumed that the county attorney had alluded to the fact that defendant "had offered no defense or testimony in this case." Nothing said by the county attorney can fairly be construed as an allusion to defendant's failure to testify. Defendant's written statement had been taken long months before the trial, in the presence of the county attorney, the sheriff, and two deputies. The sheriff and two deputies testified. In a setting of such facts and so many witnesses, the county attorney was within his rights in saying that nobody had "denied anything that is in this statement." The special subject of that remark was defendant's statement in the confession to the effect that nobody had "abused" him in procuring it. It was also proper to emphasize that no one had denied that defendant had signed the statement. (He had subscribed each of its eight pages.)
We find in the record no reference by the prosecution to defendant's failure to testify in his own behalf. That is the only thing prohibited by the statute. 2 Mason Minn. St. 1927, § 9815.
3. The statute, 2 Mason Minn. St. 1927, § 9902, declares that a "confession of the defendant shall not be sufficient to warrant his conviction without evidence that the offense charged has been committed."
We pass the question whether defendant's lengthy statement presented, in addition to his unequivocal admission of guilt, other *Page 95 evidence to satisfy the statute. We do hold that the additional and formal admission of guilt made in municipal court is enough.
The statute should be given all its intended effect. But it surely intended no such absurd result as a judicial declaration that where a defendant has made full confession, his formal and spontaneous act of appearing in court and making a further solemn and unequivocal admission not only of corpus delicti, but also of personal guilt, should not be enough, with the first confession, to sustain conviction.
Defendant's appearance and statement to the municipal judge, made the day after his confession to the county attorney, was admissible (State v. Mamer, 139 Minn. 265, 266, 166 N.W. 345) and was something more than mere speech. It was conduct characterizing and confirming the first confession. It was a formal act and enough, with the earlier expression, to justify a conviction under any proper standard.
On that precise proposition, no authorities have been cited or found. In our view, the conclusion upon which, at this point, decision is reached, is too plain to need the support of precedent.
It is the rule that "one accused of crime cannot be convicted upon the uncorroborated testimony of an accomplice nor upon his own confession, but the testimony of the accomplice is corroborated by the confession of the accused and upon such testimony and his confession he may be convicted." State v. Huebsch, 146 Minn. 34, 177 N.W. 779. If testimony of accomplice and confession, neither of them otherwise corroborated, are yet adequately supported by each other, it must follow that a confession is adequately supported by other plain admissions of guilt, made both by declarations and conduct of the defendant. It is beyond us to hold that a defendant in a criminal case cannot, by his own declarations and conduct, so corroborate his confession as to sustain a conviction for an offense of which he has twice, unequivocally and deliberately, declared himself guilty. It is too much to urge that, although an accomplice may furnish ample support for a confession, the accused himself cannot do so by declarations and conduct extraneous to the confession. Confessions are held *Page 96 to be direct, rather than circumstantial, evidence of guilt. Mitchell v. People, 76 Col. 346, 232 P. 685, 40 A.L.R. 566 (annotation, p. 571).
We are not unmindful of the rule of Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. ed. 1009, followed in State v. Anderson, 173 Minn. 293, 217 N.W. 351. That rule (which is subject to criticism difficult to answer save on narrow and technical grounds, see annotation, 71 L. ed. 1009) is that a plea of guilty which has been withdrawn by leave of court is not admissible as an admission upon the trial on the substituted plea of not guilty. The basis of that conclusion, as stated in the Kercheval case, is this:
"The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence." 274 U.S. 224, 47 S. Ct. 583,71 L. ed. 1012.
That reasoning does not apply to defendant's conduct in appearing before the municipal judge on his preliminary examination and making solemn and complete admission of guilt. The municipal judge, as examining magistrate, had no power to receive a formal plea of guilt. If what was said by way of confession ("that he was guilty of the thing that he was charged with") had been said out of court and to someone other than a judge, it would have been admissible. Certainly there is no ground upon which reason may assert that simply because the occurrence took place in court it could not be used as evidence. There is nothing so vitiating about judge or court as to nullify as evidence an admission which would be competent if made to another auditor in another place.
Order affirmed.