Appeal-criminal conviction

The remaining assignments all relate to errors of law alleged to have occurred in the course of the trial. In considering them, we apply the rule that a criminal conviction will not be reversed for technical errors, where the substantial rights of the accused have not been so violated as to make it reasontechnical errors. ably clear that a fair trial was not had, where, as here, the guilt of the accused is clearly established. State v. Nelson, 91 Minn. 143, 97 N. W. 652; State v. Crawford, 96 Minn. 95, 1 L.R.A. (N.S.) 839, 104 N. W. 822; State v. Williams, 96 Minn. 351, 105 N. W. 265; State v. Brand, 124 Minn. 408, 145 N. W. 39; State v. Jacobson, 130 Minn. 347, 153 N. W. 845; State v. Price, 135 Minn. 159, 166 N. W. 677.

4. The letter to Bowen was properly received in evidence. Gilbert had it in his possession when he went to Lakefield to speak. It furnished the occasion for his going there, and he took some of the statements in it as the text for his speech. It threw light on the meaning and purpose of his utterances.

5. Freitag's statements, while soliciting members and making speeches in Jackson county, were properly received. True, he was only an organizer, and not a party to the conspiracy, but defendants were

not charged with criminal responsibility for what he said. Organizers received instructions from headquarters. According to Teigen, Townley decided what the instructions should be, and Gilbert was in charge of the organization work. Freitag's talk expressed the same ideas as defendants' speeches, but in less guarded language. The jury might properly infer that he was their mouthpiece, and that his utterances indicated a concerted purpose on their part to discourage enlistments and the purchase of government bonds.

6. Calling attention to State v. Townley, 140 Minn. 413, 168 N. W. 591, defendants contend that the pamphlet put out by the officers of the League should not have been reIceived in evidence. The question before the court in that case was whether the circulation of the pamphlet constituted a violation of chapter 463, Gen. Laws 1917, with which defendants were charged. The present prosecution is for a conspiracy to violate that statute. In State v. Townley, 142 Minn. 326, 171 N. W. 930, we held that the indictment under which the defendants have been tried and convicted charged a conspiracy to violate the statute in question, and not its actual violation. The circulation of the pamphlet was merely one of the acts done in furtherance of the conspiracy. Such an act need not amount to a crime. If that were so, no conspiracy to commit a crime could ever be punished unless the conspirators actually committed it. United States v. Rabinowich, 238 U. S. 78, 59 L. ed. 1211, 35 Sup. Ct. Rep. 682; Pierce v. United States, 252 U. S. 239, 64 L. ed. 542, 40 Sup. Ct. Rep. 205.

7. Defendants insist that they were unduly restricted in their cross-examination of Teigen. His feelings and disposition to tell or conceal the truth were proper subjects of inquiry (Alward v. Oakes, 63 Minn. 190, 65 N. W. 270), but the extent of the inquiry is largely within the discretion of the trial court

but, conceding that the evidence was not properly admissible, we think this is not alone a sufficient basis for

New trialadmission of doubtful evidence.

a new trial, for the reason that there was ample competent evidence to warrant the conclusion arrived at by the jury. State v. Crawford, 96 Minn. 95, 1 L.R.A. (N.S.) 839, 104 N. W.822.

10. Defendant Townley was not prejudiced by the exclusion of the speeches he offered in evidence. It is not seriously asserted that they differed substantially from those that were put in evidence by the state. On the contrary, in offering them, defendants' counsel stated that they were substantially the same as the St. Paul speech made in September, 1917. That speech. That speech was in evidence. Knowing what was said in it, the jury knew what was said in the others. It is urged that the other speeches had a bearing on the question of Townley's intent in making those which the state introduced. The intent with which the speeches were made was immaterial. They were admissible

Appeal-rulings on evidence.

only as evidence of acts done in furtherance of the conspiracy, not as evidence of a violation of chapter 463. Even if defendants had not been charged with its violation, their intent would have been immaterial. State v. Gilbert, 141 Minn. 263, 169 N. W. 790.

Reliance is placed on a line of English decisions holding that in a trial for treason the speeches and publications of the accused showing his loyalty are competent evidence. It is therefore asserted that the court erred in excluding Townley's other speeches. A sufficient answer to this is that he was not on trial for treason or sedition.

11. Defendants attempted to prove the authorship of the pamphlet already referred to. Gilbert admitted that he prepared the War Resolutions, with the exception of one paragraph. Townley did not

write any portion of the pamphlet. As we have already pointed out, both defendants authorized or were cognizant of the circulation of the pamphlet. Its circulation, rather than its authorship, was the overt act for which they were responsible; hence the fact that it was largely written by someone else was immaterial.

12. Numerous assignments of error charge the court and counsel for the state with misconduct of so grave a nature as to entitle defendants to a new trial. There were frequent clashes between counsel. As the trial proceeded they became more frequent. Bitterness of feeling was displayed on both sides. At times language was used more appropriate in the arena of political debate than in a court of justice. The trial court was not always successful in promptly stopping the encounters between counsel. We do not attempt to apportion the blame. Doubtless there was provocation on both sides. The incidents of which complaint is made were regrettable. The trial court was of the opinion that they were provoked by defendants' counsel, and censured them repeatedly. While we cannot know what effect these incidents had on the jury, it has been our experience that if the accused and his counsel are treated unfairly by the court or by opposing counsel, throughout the trial, the jury is quick to perceive and resent it. The impression we get from the record is that the jury would be apt to conclude that both sides indulged in passages at arms over matters quite foreign to the issues to be determined. Viewed from any stand- New trialpoint, we do not at- misconduct of tach enough importance to the incidents complained of to hold that we are justified in disregarding the conclusion of the trial court that they were not so prejudicial as to entitle defendants to a new trial.

counsel.

13. Complaint is made of the court's failure to give defendants'

requested instructions to the jury. They were not handed to the court until after the county attorney had nearly concluded his argument to the jury. Several days before, the attorneys had been asked to present in advance any requests they intended to make, so the court would have time to consider them. The court states that it did not have sufficient time to examine the requests. The statute provides: "Before the argument begins either party may submit to the court written instructions to the jury and the court, in its discretion, may hear arguments before acting on such requests." Gen. Stat. 1913, § 7802.

The statute relates to the trial of civil actions, but we think it is applicable to criminal actions as well, and that the trial court is not bound

discretion.

Trial-time for requesting instructions- to receive or consider requested instructions not presented until after the argument to the jury begins. Especially should this be the rule where the court has asked counsel to present them seasonably in order that there may be time to consider them. We are aware of the fact that there is a great diversity of judicial opinion on the subject. The rule we adopt is sanctioned by McFadden v. United States, 91 C. C. A. 89, 165 Fed. 51; State v. Littman, 86 N. J. L. 453, 92 Atl. 580; State v. Claudius, 164 N. C. 521, 80 S. E. 261; and State v. Glenn, 88 S. C. 162, 70 S. E. 453. It has already been announced as applicable in the trial of civil actions in this state. Gracz v. Anderson, 104 Minn. 476, 116 N. W. 1116. Of course it does not apply where the court is requested to instruct the jury upon a material feature of the case not covered in the charge as given. State v. Zempel, 103 Minn. 428, 115 N. W. 275; State v. Sailor, 130 Minn. 84, 153 N. W. 271.

14. After both sides rested, counsel for defendants made the following statement to the court: "All of the attorneys of record . . for defendant Townley withdraw from

this case and terminate their employment in this case as attorneys for defendant Townley, and, continuing to represent defendant Gilbert,

request the court . . . to indicate whether the court will permit one of us to address the jury solely as attorney for defendant Gilbert."

The court ruled that each side would be allowed to make but one argument. When the county attorney had finished his address, the defendant Townley said: "I am advised that . . . I may dispense with the services of my attorneys and handle my own case. I have done that, and I now ask the permission of the court to address the jury in my own behalf, not in any measure representing Mr. Gilbert."

The state objected. Defendants' attorneys announced that they waived their right to address the jury in Gilbert's behalf. The court denied Townley's request. Defendants' counsel then said: "Mr. Gilbert forbids me to argue the case under the circumstances for him." The result was that the case went to the jury without argument in behalf of either defendant. The denial of Townley's request is assigned as error. Two questions are involved: (1) The right of the defendant in a criminal action to make an unsworn statement to the court and jury. (2) His right to make the argument to the jury in his own behalf in a case where he is represented by counsel, who have conducted his defense up to that point.

As to the first, it was the common-law rule, at least in capital cases, that the accused was entitled to make an unsworn statement to the jury at the close of the case. 1 Whart. Crim. Ev. § 427; 3 Whart. Crim. Proc. § 1515; 5 Minn. L. Rev. 390. 390. The right, according to some of the English decisions, was not absolute if the accused was defended by counsel. 1 Whart. Crim. Ev. § 427; Archbold, Crim. Pr. 196. some American states there are, or have been, statutes giving the accused this right. Higginbotham v.

In

could. Other English cases hold to the contrary. See 3 Whart. Crim. Proc. 1515; Archbold, Crim.. Pr. 197.

Since

-right of accused to address jury.

an absolute right to make the argument to the jury in his own behalf. Attention is called to § 6, art. 1, Minn. Constitution, but that section merely declares that the accused is entitled to have the assistance of counsel in his defense. Section 4947, Gen. Stat. 1913, relating to the practice of law, recognizes the right of a party to appear in his own behalf in courts of record. That right undoubtedly exists independently of the statute. The assistance of counsel cannot be imposed on the accused against his will. 8 R. C. L. 83. But if he elects to be represented by counsel, he waives his right to be heard himself, according to some of the English cases. Reg. v. Rider, 8 Car. & P. 539; Reg. v. Manzano, 2 Fost. & F. 64, 8 Cox, C. C. 321, 6 Jur. N. S. 406; Reg. v. Beard, 8 Car. & P. 142. In the first of these cases the court remarked that a prisoner defended by counsel should be entirely in the hands of his counsel; that if he stated as a fact anything which could not be proved by evidence, the jury should dismiss it from their minds, and, if he merely commented on what was already in evidence, his counsel could do it better than he

Com. v. McConnell, supra, is the only American case cited to sustain defendants' contention. We are not inclined to follow it under the special facts of this case. Both defendants were represented by three experienced attorneys, who had entire charge of the defense until the time came to make the argument to the jury. At this point Townley ostensibly discharged all of them. We say "ostensibly" because it can hardly be claimed that there was a bona fide termination of their employment. After the verdict was returned the same attorneys again appeared for both defendants, moved for a new trial, had a case settled and allowed, took this appeal, and appeared in this court and argued the case for them. At the oral argument we understood counsel to say that their alleged discharge was entered of record solely to avoid the question that would arise if Townley asked leave to argue his own case while still represented by counsel. Since their discharge was only colorable, we hold that it was within the discretion of the trial court to grant or refuse Townley's request. In the exercise of its discretion, the court might properly take into consideration the fact that a party who has not testified is almost certain, in the guise of argument, to make assertions of fact favorable to his cause, which may properly be made. only from the witness stand. It might also consider the circumstances under which the pretended discharge of counsel took place, which indicated an attempt by Townley to gain by subterfuge an opportunity to become at once a witness for himself and his own advocate.

15. Defendants insist that they have not had a fair trial, for the reasons already discussed, and for others which we deem of too little merit to justify the further extension of this opinion. They were tried in an