The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1923-05-04
SUPREME COURT
DENIES RETR|AL
Opinion In Splett- Troskey
Case Handed Down
THREE YEAR TERMS
Those Were Sentences Melted
Out To the Two Local
ST. Defendants


have been denied'a new trial by the
Minnesota State Supreme court in
an opinion handed DOWN today. They
were convicted in the Blue Earth
county district court of the charge
% Of having received part Of their sup
port from Maine Dauer, engaged
in prostitution. Inc syllables of the
court follows:
"a. The verdict s'sustained by evid-
ence.
III litigant in the cross examina
ton OF q witness OF the. opposite
party adduces facts material to the
issues on trial and then. for the nur-
pose of destroying the credita bility
Of such witness, introduces perjured
testimony TO deny the existence OF
such facts, 1t becomes proper rebut-
tai TO expose the perjury.
There is no such showing OF sur
prise that. il may be held an abuse
Of discretion TO deny a new trial on
that ground.
That on rebuttal evidence is re-
ceived which should have been offer
ed in chief is not reversible error,
unless Il appears that the party
against whom il is directed is pre-.
JUDGED.
There was no misconduct either
OF county attorney or tho trial court.
and the charge was fair and substan-
tally correct"
Affirmed.
The court opinion follows: DE,
PENDANTS were convicted OF the Of
tense defined by Section Sis, G. s.
1915. and appeal from the order de-
nying new trial.
"The indictment charged defend
ants with receiving part OF their sup =
port from MAXINE Dauer, engaged In
prostitution. in tnat they received
from her 800 between September
Is. 1921. and November 4. following
well knowing that she earned SAID
money by prostitution.
THE sufficiency OF the evidence is
challenged. Maxine testified that: in
the early part of September, 1921,
she took a room from defendants,
who were conducting roomlng
house in Maakato, Minnesota. under
an arrangement whereby she was 10
nav defendants $500 for every man
thew they sent UP TO her room ana
from whom she received price for
her prostitution; that accordingly
men were sent up and she paid over
10 each defendant. In all; about MY
dollars during the time In question.
Defendants not only denied the ar
rangement and the receipt or any
money. but testified that they never
knew that the woman was engaged
in illicit business In their establish
ment until the first week In NoVem :
Der. 1921. when at once she was put
out. The entire record has been ex
amined. and we are satished tnat
upon the conflicting evidence the
iiiry were justified in finding defend :
ants guilty. and that this court is
not warranted in setting aside the
verdict approved by the trial court.
Maxine's credibility was for the jury
even though she confessed being I'm :
moral and revengeful.
I'm the reception OF two items
of evidence. over objections detend ,
ants earnestly contend prejudical
error occurred. In the cross exam =
ination of Maxine, defendants coun
sci got her to testify that TroskeY
had sent one Cuddling 70 her room
for illicit purposes and received part
of the pay therefor from Guiding
Then. as part~of the defense, Cuddl
ing was called and testified that he
never was in Maxine's room, never
had illicit relations with her and new
er paid money TO either her or Iros
kew. In the evening Of the day nc
so testified. Guiding sought and OBJ
tanned an interview with the county
attorney. at which he informed the
latter that the testimony he had
given was false and that Maxine,
was true. The next day, June ~
1922. on rebuttal. the state calico
Guiding as a witness. who at mrs,
adhered to what he had TESTIFIED the
dav before: but. when the court gave
leading questions to the witness, the
admission was obtained that hit
previous testimony was false, anc
that he had paid money and had re
lations with Maxine precisely as sne
had testified. 1t Is claimed that thl:
was hearsay and not rebuttal. AS X
.Troskey il WAS not hearsay, at ieas'
not that which occurred between MN
and Guiding. If it was not strict!
rebuttal defendants made it so. They
inherited Cuddling into the case
evidently, for the purpose or dis
crediting the main witness OF the
state When this purpose had ap
parentiy been accomplished: ths
county attorney was informed tina
the means used had been perjury
There was then but one course Il
pursue. namely to lay the matter be
fore the court and jury to the enc
that the perjury, II found 10 exist
might not effect the verdict.
But It Is argued that Guiding
change OF testimony was a surprls'
TO the defense, and therefore a new
trial should have been granted.
new trial on this ground is address
ed 10 the courts discretion. and 1T II
impossible to see an abuse or dis
cretion here. Miller v. Layne g.
MINI. 221. No doubt, the counse
for defendants were, greatly surpris
ed. but defendants have made no at,
tempt TO show that they had gooc
reason to be surprised. Guiding, al
nittedly, perjured himself one o
the times on which he testifed. II NJ
SO did when he was first called. de
PENDANT .Troskey. not only knew II
hut teh inference is unavoidable tina
there had been subornation OF per
Jury by one or bothSof defendants.
such were the case the surprise o
their attorneys surely does not cal
for a new trial. No litigant is entiti
ed to retain the benefit OF per1uret
Testimony. The court did not err
when the county attorney, was allow
ed toNlead or cross examine Cudol
ing State v. Shea 14S Mimi. 1858.
THE other item of evidence claim
ed to have been enormously receiv
ed was this: On rebuttal the STATE
was permitted TO show illicit rela
lions between each OF defendant
and Maxine in her room during th'
first or second weeks OF her occu