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In Anderson v. Berkley (1902] 1 Ch. In Re Hammond (1911) 2 Ch. (Eng.) (Eng.) 936, where a son had written 342, 80 L. J. Ch. N. S. 690, 105 L. T. to his father that he had married a N. S. 302, 27 Times L. R. 522, 55 Sol. lady named Letitia, who was then his Jo. 649, a gift by testator to his wife reputed wife, it was held that the lady “during her widowhood” was held not was entitled to a provision made in to import a condition that their marthe father's will for the son's "wife, riage was valid, where, at the time Letitia," although she was never law of such marriage, the testator knew fully married to testator's son, there that there was the possibility that a being no question of any fraud by former husband, who had disappeared the legatee in obtaining the bequest. some years previously and who was The court said: "If entitled to con supposed to have been drowned, jecture upon the subject, it is possi- might still be alive. ble and probable that what induced Mistaken belief that legatee is the testator to confer any benefit by married or a widow. his will upon this lady was the belief In Re Janes (1895) 87 Hun, 57, 33 that she was the wife of his son. It N. Y. Supp. 968, affirmed without is not, however, a legacy to anyone opinion in (1897) 152 N. Y. 647, 46 under the simple description of N. E. 1148, it was held that a belief 'the wife of my son Francis,' without on the part of a testator that his any reference to a particular indi housekeeper was a single woman did vidual. If it had been, any person not invalidate a bequest made to her claiming must, I suppose, have shown on condition that she should remain that she really sustained that char in his service up to the time of his acter. The bequest is 'to my son's decease, and stated to have been made wife, Letitia, if she shall survive “out of respect for her, for her servhim, that is, to a legatee named, ices and kindness to me, and with the with an additional description which expectation that she will remain with is not satisfied, inasmuch as there as long as I live," although it was not any lawful wife of the tes appeared that he had discharged a tator's son Francis in the strict legal former housekeeper upon her ansense of the term, though, perhaps, nouncement of her intention to marry, in a secondary sense, Letitia Berkley and had declared that he would not or Cumberland might be called his have a married woman in his service wife. . . The legacy is intended in that position, where such objection for some person of whom the name, was based simply on a belief that a with a description, is given for the married woman would not give him purpose of ascertaining and identi the attention and service he would fying the individual. We have a com require, so that, if he was in fact pound designation, consisting of the deceived, such deception, at most, led name 'Letitia'—there is no doubt to to the employment of the legatee as whom that refers—and the descrip- housekeeper, and not to the making tion 'wife of my son Francis. It is of the testamentary provision in her a rule, however, that, where the de favor. scription is made up of more than one In Rishton v. Cobb (1839) 5 Myl. part, and one part is true but the & C. 145, 41 Eng. Reprint, 326, 9 Sim. other false, then, if tne part which 615, 59 Eng. Reprint, 495, 9 L. J. is true describes the subject or ob Ch. N. S. 110, 4 Jur. 261, a legacy to ject of the gift with sufficient cer a lady described as the widow of a tainty, the untrue part will be re certain person, so long as she should jected, and will not vitiate the gift. continue single and unmarried, was
It is impossible to say posi held not to have been procured by tively what the testator in the present her concealment of the fact that she case would have done if he had known had contracted a second marriage, the precise facts in reference to the where there was a total absence of relation between his son and this proof that this was done from any lady."
improper motive, and it appeared that
she had refused proposals of mar (according to a statement made by riage made by the testator, thereby the Master of the Rolls in Kennell negativing any idea that the testa v. Abbott (1799) 4 Ves. Jr. 809, 31 tor's testamentary disposition in her Eng. Reprint, 419, 4 Revised Rep. 351, favor was influenced by any expecta 25 Eng. Rul. Cas. 480) that children tion of her becoming his wife.
which a woman who had lived with Mistake as to existence or legality of
the testator had led him to believe relation of parent and child.
were hers and his, when as a matter In Howell v. Troutman (1860) 53 of fact they were neither, were not enN. C. (8 Jones, L.) 304, it was held
titled to a testamentary provision for that a bequest to the infant child of their benefit. the testator's housekeeper was not
In Standen v. Standen (1795) 2 Ves. vitiated by his erroneous belief that
Jr. 589, 30 Eng. Reprint, 791, a legacy he was its father, where there was
given to two persons by name was not the slightest testimony to show held not to be defeated by the fact that she ever even asked him to make that they were erroneously described a will in favor of the child, or that
as the "legitimate son and daughter she knew before the will was made of" a third person, when in fact they that he intended to make one,
were not legitimate. afterwards that he had made one, and
In Wilkinson v. Joughin (1866) it appeared that the testator had a L. R. 2 Eq. (Eng.) 319, 35 L. J. Ch. strong affection for the child.
N. S. 634, 12 Jur. N. S. 330, 14 L. T. So, also, in Kennell Abbott N. S. 394, it was held that a bequest (1799) 4 Ves. Jr. 802, 31 Eng. Reprint,
to one described as testator's step416, 25 Eng. Rul. Cas. 480, it is said daughter was not invalid use of by the master of the rolls: "I desire circumstances rendering the marriage to be understood not to determine
between her mother and the testator that where, from circumstances not illegal, and of which the testator was moving from the legatee himself, the unaware, since it could not be said description is inapplicable, as where
that the testator's belief in the legala person is supposed to be a child of ity of his marriage was the motive the testator, and from motives of
for the gift. love and affection to that child, sup
Mistake as to attitude of legatee. posing it his own, he has given a
A bequest will not be held invalid legacy to it, and it afterward turns
as having been obtained by fraud on out that he was imposed upon, and
the part of the beneficiary in reprethe child was not his own, I am not
senting herself to the testator as disposed by any means to determine
loyal to him in a contest over the will that the provision for that child
of his father, where it is established should totally fail, for circumstances of personal affection to the child
that he was extremely fond of her, might mix with it, and which might
and it does not appear that, had he entitle him, though he might not fill
known of her attitude, he would not that character in which the legacy
have made the same disposition of is given.”
his estate. Smith V. Diggs (1916) In Ex parte Wallop (1792) 4 Bro. 128 Md. 394, 97 Atl. 712, s. c. on subCh. 90, 29 Eng. Reprint, 794, 2 Dick. sequent appeal in (1917) 130 Md. 101, 767, 21 Eng. Reprint, 649, it was held 99 Atl. 652.
E. S. 0.
(- Minn. 182 N. W. 773.)
Trial right of accused to address jury.
1. There is no constitutional provision conferring upon the accused the right to make the closing argument to the jury in his own behalf. He is guaranteed the right of having the assistance of counsel for his defense, and counsel cannot be imposed upon him against his will, but if he elects to be represented by counsel who conduct the defense until the time comes to make the argument to the jury, he cannot ostensibly discharge them and then insist on making the closing argument himself, especially where he did not take the stand as a witness. It is within the discretion of the trial court to permit him to do so, and, under the facts disclosed by the record, it did not abuse its discretion in refusing such permission.
[See note on this question beginning on page 266.] Conspiracy hindering prosecution court to grant separate trials of deof war.
fendants jointly indicted for a misde2. To establish a charge of a con
meanor. spiracy to violate chapter 463, Gen.
[See 8 R. C. L. 167.] Laws 1917, the state must prove that Trial - cross-examination restricdefendants had concerted to teach that tion. men should not enlist in the military 6. Defendants were not unduly reforces of the United States or aid in stricted in their cross-examination of carrying on the war with Germany. A the state's principal witness. combination for an unlawful purpose Appeal reasons for change of senti. is the foundation of the offense, and ment inquiry. an overt act in furtherance of such
7. The reasons for a change from purpose completes the offense. All
friendly to unfriendly sentiments on who are parties to the combination in
the part of a witness for the state havcur guilt when one does such an act.
ing been inquired into on his crossThe combination need not be estab
examination, it was not error to perlished by direct evidence, but may be mit the state further to develop the inferred from circumstances.
subject within reasonable limits. Evidence sufficiency.
[See 28 R. C. L. 597.] 3. The evidence, direct and circum New trial admission of doubtful stantial, was sufficient to support the evidence. verdict.
8. The admission of evidence of Appeal criminal conviction tech
doubtful relevancy is not alone sufnical errors.
ficient ground for a new trial, where 4. If guilt is clearly established, a
there was ample competent evidence criminal conviction will not be re
to warrant the jury's conclusion reversed for technical errors, where the
specting defendant's guilt. substantial rights of the accused have
[See 20 R. C. L. 265.] not been so violated as to make it rea Appeal — rulings on evidence. sonably clear that a fair trial was not
9. There were no errors in rulings had.
admitting or excluding evidence. [See 2 R. C. L. 233.]
New trial misconduct of counsel. Criminal law joint indictment
10. Defendants are not entitled to a separate trials.
new trial on the ground of misconduct 5. It is discretionary with the trial
on the part of the court or opposing
counsel. Headnotes by LEES, C.
Trial time for requesting instruc 7802, Gen. Stat. 1913, is applicable to tions — discretion.
the trial of criminal as well as civil 11. It was within the discretion of actions. the trial court to receive and consider [See 14 R. C. L. 802.] defendants' requests for instructions - disallowing statement by accused. not submitted until near the end of 12. Since the accused may now testhe argument of the prosecuting at
tify in his own behalf if he desires, the torney, notwithstanding the request of courts should no longer follow or the court, made several days before, recognize the practice obtaining at that the attorneys present their pro common law of permitting him to make posed instructions in time to enable an unsworn statement to the jury at the court to consider them. Section the close of the case.
APPEAL by defendants from a judgment of the District Court for Jackson County (Dean, J.) convicting them of criminal conspiracy and denying them a new trial. Affirmed.
The facts are stated in the Commissioner's opinion.
Messrs. George Hoke, George Nord 6 Pa. Super. Ct. 256; Olson v. United lin, and Vince A. Day for appellants. States, 67 C. C. A. 21, 133 Fed. 849;
Messrs. Clifford L. Hilton, Attorney Crawley v. State, 15 Ala. App. 327, 73 General, James E. Markham, Assist So. 222; Shea v. United States, 149 C. ant Attorney General, and E. H. Nich C. A. 307, 236 Fed. 97; Spies v. People, olas, for the State:
122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. The conspiracy is established by 865, 17 N. E. 898, 6 Am. Crim. Rep. circumstantial evidence indicating the 570; United States v. Mitchell, 1 common purpose.
Hughes, 439, Fed. Cas. No. 15,790; Underhill, Crim. Ev. 2d ed. § 491; United States v. Babcock, 3 Dill. 581, Gardner v. Preston, 2 Day, 205, 2 Am. Fed. Cas. No. 14,487; United States v. Dec. 91; Marrash v. United States, 93 Butler, 1 Hughes, 457, Fed. Cas. No. C. C. A. 511, 168 Fed. 225; Radin v. 14,700; Hyde v. United States, 225 U. United States, 111 C. C. A. 6, 189 Fed. S. 347, 56 L. ed. 1114. 32 Sup. Ct. Rep. 568; Eacock v. State, 169 Ind. 488, 82 793, Ann. Cas. 1914A, 614; United N. E. 1039; State v. Caine, 134 Iowa, States v. Cassedy, 2 Sumn. 582, Fed. 147, 111 N. W. 443; People v. Nall, 242 Cas. No. 14,745; People v. Darr, 262 Ill. 284, 89 N. E. 1012; Chicago, W. & Ill. 202, 104 N. E. 389; People v. Kizer, V. Coal Co. v. People, 114 Ill. App. 75, 22 Cal. App. 10, 133 Pac. 516, 521, 134 affirmed in 214 Ill. 421, 73 N. E. 770; Pac. 346; Jones v. State, 174 Ala. 53, Musser v. State, 157 Ind. 423, 61 N. E. 57 So. 31; People v. Miles, 123 App. 1; Hudson v. State, 43 Tex. Crim. Rep. Div. 862, 108 N. Y. Supp. 510, af420, 66 S. W. 668; United States v. firmed in 192 N. Y. 541, 84 N. E. 1117; Greene, 146 Fed. 803, affirmed in 85 State v. Gadbois, 89 Iowa, 25, 56 N. W. C. C. A. 251, 154 Fed. 401; People v. 272; Kelley v. People, 55 N. Y. 565, 14 Schmidt, 33 Cal. App. 426, 165 Pac. Am. Rep. 342; Stevens v. State, 8 Ga.. 555; Sands v. Com. 21 Gratt. 871; State App. 217, 68 S. E. 874; Osborne v. v. Beebe, 17 Minn. 241, Gil. 218; State State, 99 Miss. 410, 55 So. 52; Radin v. Dunn, 140 Minn. 317, 168 N. W. 2; v. United States, 111 C. C. A. 6, 189 State v. Evans, 88 Minn. 262, 92 N. W. Fed. 568; Rigsby v. State, 152 Ala. 9, 976; People v. Pouchot, 174 Ill. App. 1; 44 So. 587; People v. Cory, 26 Cal. App. Com. v. Bingle, 62 Pa. Super. Ct. 105; 735, 148 Pac. 532; Bond v. State, 9 State v. Madden, 170 Iowa, 230, 148 N. Okla. Crim. Rep. 696, 129 Pac. 666; W. 995; United States v. Richards, 149 Horton v. Lee, 106 Wis. 439, 82 N. W. Fed. 443; People v. Miles, 192 N. Y. 360; Gibson v. State, 89 Ala. 121, 18 541, 84 N. E. 1117; Com. v. Snyder, 40 Am. St. Rep. 96, 8 So. 98; United States Pa. Super. Ct. 485; State v. Soper, 118 v. Goldberg, 7 Biss. 175, Fed. Cas. No. Iowa, 1, 91 N. W. 774; State v. Briggs, 15,223; People v. Mather, 4 Wend. 229, 122 Minn. 493, 142 N. W. 823; Morse 21 Am. Dec. 122; United States v. Babv. Com. 129 Ky. 294, 111 S. W. 714; cock, 3 Dill. 585, Fed. Cas. No. 14,487; Heike v. United States, 227 U. S. 131, Patnode v. Westenhaver, 114 Wis. 460, 57 L. ed. 450, 33 Sup. Ct. Rep. 226, 90 N. W. 467; 12 C. J. 637; United Ann. Cas. 1914C, 128; Com. v. Pugliese, States v. Hutchins, Fed. Cas. No. 44 Pa. Super. Ct. 361; Com. v. Spencer, 15,430; Doyle v. United States, 95 C. C.
(- Minn. 182 N. W. 773.) A. 153, 169 Fed. 625; United States v. 63 L. ed. 566, 39 Sup. Ct. Rep. 252; Richards, 149 Fed. 443; Reilley V. Abrams v. United States, 250 U. S. United States, 46 C. C. A. 25, 106 Fed. 616, 63 L. ed. 1173, 40 Sup. Ct. Rep. 897; Bannon v. United States, 156 U.S. 17; Schaefer v. United States, 251 U. 464, 39 L. ed. 494, 15 Sup. Ct. Rep. 467, S. 466, 64 L. ed. 360, 40 Sup. Ct. Rep. 9 Am. Crim. Rep. 338; Bloomer v. State, 259; Gilbert v. Minnesota (U. S. Adv. 48 Md. 524, 3 Am. Crim. Rep. 37. Ops. 1920–21, p. 146) 254 U. S. 325, 65
The circumstantial evidence is prop L. ed. 287, 41 Sup. Ct. Rep. 125. erly corroborated by proof of acts and Upon the trial of an indictment for declarations of the conspirators. conspiracy, defendants are not en
State v. Madigan, 57 Minn. 425, 59 titled to separate trials. N. W. 490; State v. Rose, 70 Minn. 403, 2 Bishop, New Crim. Proc. p. 1018; 73 N. W. 177; State v. Wilson, 72 Minn. State v. Sederstrom, 99 Minn. 234, 109 522, 75 N. W. 715; State v. Ames, 90 N. W. 113; 12 C. J. 640. Minn. 183, 96 N. W. 330; State v. In the absence of express constituSederstrom, 99 Minn, 234, 109 N. W. tional or statutory provision, there is 113; State v. Monroe, 142 Minn. 394, no absolute right of a defendant in 172 N. W. 313; State v. Schueller, 120 these circumstances to make his own Minn. 26, 138 N. W. 937; State v. argument to the jury. Briggs, 122 Minn. 493, 142 N. W. 823; 2 Bishop, New Crim. Proc. § 962; State v. Lucken, 129 Minn. 402, 152 Reg. v. Boucher, 8 Car. & P. 141; Reg. N. W. 769; State v. Southall, 77 Minn. v. Burrows, 2 Moody & R. 124; New296, 79 N. W. 1007; 3 Enc. Ev, 413; ton v. Chaplin, 10 C. B. 356, 138 Eng. Lincoln v.
Claflin, 7 Wall. 132, 19 L. ed. Reprint, 144, 19 L. J. C. P. N. S. 374, 106; Bloomer v. State, 48 Md. 521, 3 14 Jur. 1121; Rex V. Parkins, 1 Car. Am. Crim. Rep. 37; Davis v. United & P. 548, Ryan & M. 166; Rex v. States, 46 C. C. A. 619, 107 Fed. 753; White, 3 Campb. 98, 13 Revised Rep. People v. Saunders, 25 Mich. 119; 765; 3 Whart. Crim. Proc. 10th ed. p. State v. McIntosh, 109 Iowa, 209, 80 1978. N. W. 349; State v. Sopher, 118 Iowa, 1, 91 N. W. 774; People v. Arnold, 46
Lees, C., filed the following opinMich, 268, 9 N. W. 406; Shea v. United
ion: States, 149 C. C. A, 307, 236 Fed. 97; Defendants were indicted in JackPeople v. Smith, 147 Ill. App. 146; son county in May, 1918, on a charge United States v. Greene, 146 Fed. 784; of criminal conspiracy. The subPeople v. Kizer, 22 Cal. App. 10, 133 stance of the indictment and the Pac. 516, 521, 134 Pac. 346; Bolton v.
questions raised by their demurrer State, 21 Ga. App. 184, 94 S. E. 95;
to it are reported in State v. TownState v. Bourne, 86 Minn. 426, 90 N. W. 1105; State v. Barrett, 40 Minn. 65,
ley, 142 Minn. 326, 171 N. W. 930. 41 N. W. 459; Com. v. Sanderson, 40
Defendants were brought to trial in Pa. Super. Ct. 416; State v. Smith, 55
June, 1919. The trial lasted three Or. 408, 106 Pac. 797; Howle v. State,
weeks, and resulted in a verdict of 15 Ala. App. 185, 72 So. 759; McKelvey guilty. They moved for a new trial. v. United States, 154 C. C. A. 503, 241 In July, 1920, their motion was deFed. 801; People v. Halpin, 276 Ill. nied, and they appealed, specifying 363, 114 N. E. 932; State v. Lewis, 96 102 alleged errors. Some of the asIowa, 286, 65 N. W. 295; People v. signments are not of sufficient imBleeker, 2 Wheeler, C. C. 256; United States v. Cole, 5 McLean, 513, Fed.
portance to justify discussion, but Cas. No. 14,832.
none have escaped our careful conChapter 463 of the Laws of 1917 is
sideration. Some have been comnot invalid.
bined for examination, and others State v. Holm, 139 Minn. 267, L.R.A.
will be considered separately. .1918C, 304, 166 N. W. 181; State v. 1. The objections to the constituFreerks, 140 Minn. 349, 168 N. W. 23; tionality of chapter 463, Gen. Laws State v. Townley, 140 Minn. 413, 168 1917 (Gen. Stat. Supp. 1917, $$ N. W. 591; State v. Kaercher, 141
8521-1 to 8521-6), which are first Minn. 186, 169 N. W. 699; State v. Gilbert, 141 Minn. 263, 169 N. W. 790;
in order, were disposed of in State Schenck v. United States, 249 U. S. 47,
v. Gilbert, 141 Minn. 263, 169 N. W. 63 L. ed. 470, 39 Sup. Ct. Rep. 247;
790, affirmed in Gilbert v. MinnesoDebs v. United States, 249 U. S. 211, ta (U. S. Adv. Ops. 1920–21, p. 146)