State of Minnesota vs. Max Mason. Case No. 22590. 1921-1922. Supreme Court Record.
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22590
STATE OF MINNESOTA
SUPREME COURT.
_________
STATE OF MINNESOTA
Respondent
vs.
MAX MASON,
Appellant
_________
RECORD
_________
F. L. BARNETT
Chicago, ILL,
R. C. McCULLOUGH
Duluth, Minn.,
Attorneys for Appellant
CLIFFORD L. HILTON
Attorney General
W. E. GREENE,
County Attorney
Attorneys for Respondent
INDEX
Indictment........................................... 1
Testimony........................................... 3
Instructions......................................... 190
Verdict............................................... 196
Motion for New Trial.............................. 196
Order Denying Motion ........................... 199
Notice of Appeal .................................. 201
PLAINTIFF’S WITNESSES.
Irene Tusken –
Direct examination .......................... 3
Cross-examination .......................... 24
James Sullivan –
Direct examination .......................... 50
Cross-examination .......................... 63
John Murphy
Direct examination .......................... 111
Cross-examination .......................... 113
A. G. Fiskett –
Direct examination .......................... 114
Cross-examination .......................... 117
David Graham –
Direct examination .......................... 127
Cross-examination .......................... 129
Wm. A. Coventry –
Direct examination .......................... 131
Cross-examination .......................... 132
Re-direct examination ...................... 132
M. A. Nicholson –
Direct examination .......................... 133
Cross-examination .......................... 134
Frank A. Schulte –
Direct examination .......................... 188
DEFENDANT’S WITNESS.
Louis Hayes –
Direct examination .......................... 135
David Graham –
Direct examination .......................... 153
Cross-examination .......................... 157
Max Mason –
Direct examination .......................... 159
Cross-examination .......................... 185
STATE OF MINNESOTA
SUPREME COURT
__________
STATE OF MINNESOTA, DISTRICT COURT,
County of St. Louis, 11th Judicial District.
State of Minnesota
Respondent, 2
MAX MASON,
Appellant.
__________
APPEARANCES
For the State, Warren E. Greene, County Attorney
For the Defendant, F. L. Barnett, R. C. McCullough
and Chas M. Scrutchin.
____________
INDICTMENT.
Max Mason is accused by the Grand Jury of the
County of St. Louis, Minnesota, by this indictment
of the crime of rape, committed as follows, to-wit:
the said Max Mason, on the fourteenth day of June,
A. D. 1920, at the city of Duluth. County of St.
Louis and State of Minnesota, did wrongfully, un-
4 lawfully, willfully and feloniously have sexual in-
tercourse with one Irene Tusken, against her will and without her consent, the said Irene Tusken being then a there a female of upwards of ten years, to-wit: of the age of eighteen years, and the said Irene Tusken not being then and there the wife of the said Max Mason; the resistance of the said Irene Tusken to the said sexual intercourse being then and there forcibly overcome, and being then and there prevented by fear of immediate and
5 great bodily harm which she then and there had reasonable cause to believe would be inflicted upon her, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of State of Minnesota.
Dated at the Duluth in said County of St. Louis and State of Minnesota, this 19th day of July, A. D. 1920.
W. J. McCABE,
Foreman of the Grand Jury.
6 Witnesses examined before the Grand Jury:
Dr. David Graham,
Irene Tusken
James T. Sullivan,
John Murphy
A. G. Fiskett,
Amanda Tusken,
P. B. Sullivan,
W. A. Coventry
TESTIMONY
__________
IRENE TUSKEN,
being first duty sworn as a witness on behalf of the State, testifies as follows:
DIRECT EXAMINATION.
By Mr. Greene:
Q. Your name is Irene Tusken?
A. Yes, sir.
Q. How old are you?
A. Nineteen.
Q. Now, Miss Tusken, on the 14th of June last were you living at the same place that you live now?
A. Yes, sir.
Q. That evening were you at home or did you come up town?
A. I was at home until about eight o’clock.
Q. How did you come to go away?
A. Why, two girls came after me to go. We were not very definite where we would go.
Q. When you left the house you took the street car?
A. Yes. We walked down to Central.
Q. Walked down to Central. Got a Grand Avenue car?
A. Yes, sir.
Q. You three girls got off the car at Vernon Street and you say you walked
back?
A. Yes, sir.
10 Q. What did you three girls do when you got back there?
A. We walked into the circus grounds, around in front there, and there I met Jimmie.
Q. How long had you know Jimmie Sullivan?
A. It is about two years.
Q. How well have you know him since?
A. Why, I have known him intimately for about—it is over a year.
Q. When you left the house on the evening of the
11 14th of June and went down with the girls, did you expect to meet Jimmie?
A. No, I did not.
Q. Did you go into the animal tent?
A. No, we just stayed outside.
Q. When you got there what was the condition there—were the side shows in operation?
A. Yes, they were.
Q. Men barking outside, and hollering?
A. Yes, sir.
12 Q. How about the animal tent—was that up?
A. They were just taking it down.
Q. After you met Jimmie did you stay with the other girls?
A. No, I didn’t; I left them.
Q. You left and walked around with him?
A. Yes, sir.
Q. After you got there how long did you stand around there, do you think?
A. Well, I should imagine it was about three quarters of an hour.
13 Q. During that three quarters of an hour just what were you doing?
A. We were walking around; we was going to go into the side shows and we were walking to the different ones to see which ones we wanted to go into, and found we didn’t want to go into any of them.
Q. Then what did you do?
A. Then we—we walked—we noticed quite a few people over at the menagerie and we walked over to there.
14 Q. Now, Miss Tusken, while you were going around there with Jimmie in the way you have described,—you said you went around for about three quarters of an hour. What makes you think it was about three quarters of an hour?
A. I heard the nine o’clock whistle blow and it was a while after that.
Q. Where were you at the time the nine o’clock whistle blew?
A. I don’t remember where we were exactly.
15 Q. Well, roughly?
A. We were somewhere around the side shows then.
Q. Fifteen minutes or so after that—what hap-pended then?
A. We walked up around the menagerie, not at the entrance, but around; they had started to tear down the tents.
Q. What did you and Jimmie do,—where did you go?
A. We watched them there a little to the left of the entrance.
16 Q. You and Jimmie stayed around the side shows for some time, and then—You and Jimmie were around the side shows up there quite a ways and after a while you saw this activity going on up around there with these animals and you walked up there to the joint you have indicated?
A. Yes, sir.
Q. On this plat. When you got up there what was going on?
17 A. Why all of the working men were around,—they were taking the animals away.
Q. Were these working men white men or colored men?
A. They were colored men.
Q. When you went up there were there any other people up there?
A. Yes, there were.
Q. I mean spectators?
A. Yes, that is what I mean.
18 Q. Were there many spectators up there when you went up there?
A. Yes, there were quite a few, but they were sort of scattered around.
Q. They were sort of scattered around?
A. Yes, sir.
Q. When you got up in there and standing there watching this, how far would you think you were from the nearest side show tent?
A Let us see—we were quite a ways from it; probably about from here to the first step.
19 Q. A distance of about from where you are down to me?
A. Yes, sir.
Q. A distance of about thirty feet.
A. I would think that is about the distance.
Q. How long do you think you and Jimmie stood there and watched what was going on?
A. Why, about ten minutes.
Q. Then did you notice anything about the rest of the spectators?
20 A. Why, we noticed nearly everyone was gone that were standing around watching.
Q. What was the condition up there as far as the lights were concerned,—was it dark, or medium or light?
A. Well, around that tent the lights from the docks sort of gave light there.
Q. That is, there is a string of lights all the way around the Missabe—
A. Yes.
Q. —curve on the ore-docks?
21 A. Yes, sir.
Q. So it was not pitch black in there?
A. No, it was not.
Q. Well, after you had been there some ten minutes or so it would bring it to about what time in the evening?
A. Why, somewhere around nine-thirty.
Q. When you notice the rest of the spectators had apparently gone away what
did you and Jimmie do?
22 A. We turned to go back towards the side shows again.
Q. What happened then?
A. Then when we turned around again there were five or six Negroes stopped us,—that were standing there. We walked only about a couple feet.
Q. How did they stop you, just tell us?
A. Just wouldn’t let us go by; blocked our patch.
Q. Then what happened?
23 A. Then one of the Negroes, the shortest of the bunch, pointed a gun at Jimmie’s head.
Q. What did they say, any of those Negroes?
A. I don’t remember them saying any,—I don’t remember what they said, if they said anything to us. They were talking among themselves.
Q. Did any of them take hold of you, or anything of that kind?
A. Yes, one of them took hold of me. One took away my ring.
24 Q. Did you have a ring on your hand?
A. Yes, sir; the same one.
Q. The same ring you have there?
A. Yes, sir.
Q. Have it on the same finger?
A. Yes, sir.
Q. One of the crowd took the ring off your finger?
A. Yes, sir.
Q. What happened after that with the ring?
A. He gave it back to me then.
Q. How did he come to do that?
25 A. I don’t know; he just gave it back to me; I don’t know if he thought it wasn’t any good.
Q. Was that the same one that had hold of you or was it one of the others?
A. I think it was the same one that had hold of me. He was near me.
Q. How were the others,—were they close to you or some distance away?
26 A. They were all in a bunch; but he was nearest to me.
Q. All in a bunch. Were they close to you?
A. Yes, sir.
Q. You saw this one that held the gun at Jimmie’s head, did you?
A. Yes, sir.
Q. How close to you was Jimmie?
A. Why he was walking right beside me.
Q. Which side was he?
A. He was—he was on the right.
27 Q. On your right,—on this side?
A. Yes, sir.
Q. Is that the way you were facing when the negroes stopped you?
A. I am quite sure of that.
Q. Well, he was close to you, anyway?
A. Yes, sir. No, I think he was on my left when I think about it. He was on my left.
Q. Just go on and tell us what happened.
A. Then when—after he took my ring and gave
It back to me, they were talking among
28 themselves quite a bit; I didn’t understand what they said, sort of an undertone, and pretty soon two or three of them—one stood behind Jimmie and held a gun there and the rest came and took me and carried me over across the field.
Q. How did they carry you?
A. I was sort of walking; they were—they didn’t have me entirely off my feet.
Q. Did they have hold of you?
A. Yes, sir.
29 Q. You were not entirely off your feet, you say?
A. No, sir.
Q. They had hold of you and took you across this field?
A. Yes, sir.
Q. Where was Jimmie and the man that had the—
A. They were coming right behind.
Q. Coming right behind?
30 A. Yes, sir.
Q. Which direction did they take you from that place where you were?
A. I don’t know if I can tell by this; it was across—I don’t remember—
Q. But you went off—
A. To the west.
Q. To the west?
A. Yes, sir.
Q. About how far would you think it was that you went?
31 A. It was quite a ways over; let me see; about I couldn’t tell exactly now.
Q. Roughly speaking, was it—
Mr. Barnett: Can’t you measure by the room?
A. Oh, it was further than—
By Mr. Greene:
Q. Roughly, about how far? Was it half a block, or a block, or two blocks?
A. It must have been nearly a block.
Q. When you got over there, these men took you over there, what happened?
32 A. Why, the men that were holding me threw me to the ground, and Jimmie and the man that—the man that held the gun stood behind us about—a little ways behind us.
Q. How far? As far as from here to you?
A. About ten feet, something like that. About this far.
Q. From the time when they took hold of you down near the tent did you scream or holler—
Mr. Barnett: I do not think the witness ought to be
33 led. I do not think a leading question ought to be put to the witness in as serious a matter as this.
The Court: Yes, counsel will avoid leading questions. That is not suggestive of the answer. You may answer the question, objection overruled.
A. When—when be drew the gun and took hold of me—when the man took hold of me I screamed then.
By Mr. Greene:
Q. What happened?
34 A. Then one of the men put his hand over my mouth.
Q. Which one was that?
A. That was the tall one, the one I identified down at the grounds.
Q. Do you remember his name?
A. I think it was Miller, his name was.
Q. Say anything to you at the time be put his hand over your mouth?
A. They said, “Don’t scream or I will shoot—“
35 Q. Do you remember the exact language?
A. I do not remember the exact words that he said, but something that he would do if we screamed.
Q. Calling your attention to this man who held the gun at Jimmie’s head, was that the same one who went over with Jimmie?
A. Yes. He was a little taller than Jim.
Q. A little taller than Jimmie?
A. Yes, sir.
36 Q. After you were gotten over and thrown to the ground by this crowd of men what happened then?
A. I fainted then.
Q. What was the next thing that you knew?
A. The next thing I remember, when I woke up—there was one man on top of me. So—then I fought and pushed and tried to put him away, and then he got up. He didn’t do anything more then.
Q. What did you do—did you get up?
37 A. I raised myself a little bit and then Jimmie came down and helped me up.
Q. After that what happened?
A. Then,—let’s see,—these two negroes were talking, and when we started back—they were talking to each other; we started back towards the circus, up that slope, and they wouldn’t let us go that way and they ordered us to go over across, up the other slope west.
Q. When you came to and got onto your feet how many negroes were there left there?
38 A. Just two.
Q. Just two left?
A. Yes, sir.
Q. When you went over there how many were there?
A. There were six. Yes, there were six.
Q. Did that include the one that had the gun on Jimmie?
A. Yes, sir.
39 Q. Those two that were left there when you got up, which two were they?
A. They were the two that you had identified down at the grounds as the ones who held the gun,—Mason and Miller.
Q. Miller is the same Miller you spoke about a few minutes ago?
A. Yes, sir.
Q. As the one who put his hand over your mouth?
A. Yes, sir.
Q. Let me ask you then, when you got up you
40 stated there was one of those that were left that
was on top of you then. Which one was that?
A. That was Miller.
Q. Did you see the other one Mason?
A. He was back with Jimmie then.
By Mr. Greene:
Q. Just before recess, Miss Tusken, you stated that you and Jimmie came out practically over to the Merrit school at Fortieth Avenue?
A. Yes.
41 Q. About what avenue is it where the circus grounds are?
A. The circus grounds are on about Thirty-fifth or Thirty-sixth, something like that.
Q. When you got over to the Merritt school what did you and Jimmie do?
A. We sat on the steps then.
Q. Did you have some talk with him there in relation to what had taken place?
A. Yes, we did.
42 Q. How long did you sit there and talk?
A. I don’t know how long it was; about five minutes,—five or ten minutes.
Mr. Greene: I presume the conversation between these two at that time would not be admissible?
Mr. Barnett: Certainly not.
By Mr. Green:
Q. After you had sat there for five or ten minutes then where did you and he
go?
A. We then walked down to the car line.
43 Q. That is at Grand Avenue?
A. At Grand Avenue.
Q. Did you take the car?
A. We took the car, yes.
Q. Where did you go to?
A. We rode to Forty-ninth.
Q. And from there where did you go?
A. Walked home.
Q. How far is it from the car to your home?
A. It is about three blocks.
44 Q. When you got there at home what did you do?
A. We sat on the steps at home.
Q. How long did you sit there?
A. Sat there about five minutes.
Q. Did you have any talk with Jimmie there?
A. Yes, sir.
Q. After you had sat there and talked with him then what did you do,—or what did he do?
45 A. He left then, he went home; I went in the house.
Q. Where did you go?
A. I went right upstairs then.
Q. Whereabouts did you go upstairs?
A. To the bath-room.
Q. Did you go directly to the bath-room or your own room?
A. I went straight to the bath-room.
Q. What did you do in the bath-room?
A. Why, I bathed myself there in the bath-room.
46 Q. What was your condition from the time this thing happened over in the ravine up to the time you got to the bath-room?
A. I don’t know what you man, the condition.
Q. Well, when you left the ravine there what was the condition of your legs and private parts?
A. Why, I was wet. I could hardly walk my limbs were sore.
Q. What was the reason that you went to the bath-room?
47 Mr. Barnett: I object to that, if the Court please.
The Court: What is the objection?
Mr. Barnett: He is giving to the jury evidence of what she though. She went to the bath-room; she tells what she did in the bath-room; now, to ask her why she went to the bath-room is a different thing. I think she can testify to what happened, what was done but not to give any reason because that enables the witness to put a construction upon her actions and that is for the jury to do.
48 The Court: The objection is overruled.
By Mr. Greene:
Q. You stated, I think, that you bathed yourself?
A. Yes, sir.
Q. What part of yourself did you bath?
A. Why, bathed between my legs and—
Q. Were you still moist between your legs before you bathed, or not?
Mr. Barnett: That question is leading and suggestive. I don’t think
that is fair.
49 The Court: Counsel should avoid leading questions, especially ones suggesting the answer. As I remember she testified once.
Mr. Greene: Did she testify to it?
Mr. Barnett: I don’t know.
(Questions and answers read as follows: “Q. What was your condition from the time this thing happened over there in the ravine up to the time you got to the bath-room? A. I don’t know what you mean, condition? Q. Well, when you left the ravine there what was the condition of your legs
50 and private parts: A. Why, I was wet and I could hardly walk, my limbs were sore.”)
Mr. Barnett: Nothing was said about between her legs.
The Court: The objection is overruled. You may answer.
Mr. Barnett: An exception.
(Question read by reporter as follows: “Q. Were you still moist between your legs before you bathed, or not?”)
51 A. I was not.
By Mr. Greene:
Q. What had happened?
A. Why, it had gotten on my underclothing.
Q. You were wearing what kind of underclothing?
A. A union suit.
Q. As I understand you to say, between the time you left the ravine and the
time you got to the bath-room the moisture that you mentioned
the wetness that you have mentioned had been
51 transferred from your body to the underclothes—is that the idea?
A. Well, yes part of it had; the other,—the rest had dried?
Q. The rest sort of dried?
A. Yes, sir.
Q. You say you were wearing a union suit. At the time you were in the bath-room did you undress?
A. Yes.
53 Q. Did you—
A. No, not in the bath-room; from the bath-room I went to my room undress.
(Article of clothing marked Exhibit B.)
Q. Calling your attention to State’s Exhibit B. I ask you if you know what this is?
A. I know what this is.
Q. What is it?
A. It is my union suit that I wore that night.
Q. That is the union suit that you wore that
54 night?
A. Yes, sir
Q. When did you take that off?
A. I took that off the same night when I came home.
Q. In the bedroom or bath-room?
A. In the bedroom.
Q. Did you notice its condition at that time?
A. Yes, I did.
Q. Was it in the same condition as it was when you put it on to go out that
day?
A. It was not.
55 Q. What difference was there?
A. It was torn and dirty.
Q. Will you show us whereabouts on here is the tear that you have just mentioned?
A. Here (indicating); here.
Q. Indicating the two tears that you speak of.
What part of the union suit,—which is the front and which is the back?
A. This is the back?
Q. Where this flap is?
56 A. Yes, sir.
Q. Then the tears that you speak of—are on the leg part of the union suit?
A. Yes, sir.
Q. Were those tears there before this encounter with these Negroes out in the ravine, or not?
A. They were not.
Q. They were not.
A. They were not.
57 Q. You say the union suit was at that time dirty. Whereabouts was it dirty?
A. It was dirty where it was torn.
Q. Around the front part of the union suit or the back?
A. The front.
Q. Were you wearing this union suit next to your skin?
A. Yes, sir.
Q. It was the first undergarment that you had on?
A. Yes, sir.
58 Q. did you have an over undergarment-on?
A. I had a petticoat on.
Q. After you had been in the bath-room and cleansed yourself as you have indicated, you say you went to your bed-room?
A. Yes, sir.
Q. You walked around the room for a while?
A. Yes, sir.
Q. How long were you walking around the room, do you think?
59 A. Just a few minutes; about three or four minutes.
Q. And then you went to bed?
A. Yes, sir.
Q. Did you go to sleep right away?
A. No, sir; I laid awake quite a while.
Q. What was the next thing that occurred in relation to this?
A. The next thing mother was awakening me she was shaking me, trying to wake me up.
60 Q. About when was that, do you know?
A. It was around two o’clock.
Q. She was in your room, was she?
A. Yes.
Q. Trying to wake you up. Did she have some talk with you at that time?
A. Yes, she did.
Q. What was the next that did occur in relation to the matter after that as far as you know?
A. Then my father telephoned to Mr. Sullivan.
Q. What time did you get up the next morning?
61 A. I got up immediately after that—shortly after that.
Q. Shortly after that?
A. Yes, sir.
Q. Where did you go, what did you go?
A. Why, about—about three o’clock or a little after we went down to the West Duluth police station.
Q. Did anybody come for you?
A. No.
62 Q. Who went down to the police station?
A. Mother and dad and I.
Q. About three o’clock in the morning?
A. Yes, sir.
Q. Where did you go from there?
A. We stayed there until near five.
Q. And then where?
A. Then mother and I went back home. During that time Mr. Sullivan had come down.
63 Q. What did you do down there,—what happened down there?
A. There we—they had taken all the negroes out of the car; they had held up the circus train at that point and they took all of the Negroes out of the cars and lined them up for identification.
Q. What did you do?
A. Then I picked out just the ones that I thought were the ones that were there that night.
Q. And after that where did you go?
A. Then I went home; they took me home.
64 Q. What is the next thing that—Oh, I think that they some time,—did Dr. Graham come over?
A. Yes, about 9:30, I think that morning.
Q. Well, after that what occurred, what was the next thing you had to do with it?
A. Lets’ see. I don’t think I had anything to do with it until I had to come up hear.
Q. To the grand jury?
A. To the grand jury?
Q. Yes, I guess that is right. And you testified before the grand jury?
65 A. Yes, sir.
Q. It was after the time that you had been before the grand jury, was it not, that we went down there on the circuit ground lots?
A. Yes, it was.
Q. Just tell the jury what occurred down there. About how long was that, if you recall it, as far as you remember the exact day—I don’t suppose you remember the exact day, but about how long was that after this had happened?
66 A. I think it was about the middle of July.
Q. Just go on.
A. I don’t remember the exact number that were brought down; they were brought down in cars and one by one they were brought up to where I was standing.
Q. Whereabouts—were you down by Grand Avenue or up in the lots?
A. We were up—
Q. Out in the light.
A. Up in the light, yes.
67 Q. I will ask you whether or not light conditions—
A. The first night it was just about the same as that night.
By Mr. Greene: And how about the second night?
Mr. Barnett: I move that that answer be stricken out.
The Court: On what grounds do you ask that it be stricken out?
68 Mr. Barnett: The answer follows the objection to the question just overruled.
The Court: The motion is denied.
Mr. Barnett: An exception to the ruling.
A. The second night was a little darker; it had been raining that day.
Q. So the second night the light conditions were not quite as good?
A. Not as good as the first.
Mr. Barnett: I make the same objection,—and the
69 same ruling and exception?
The Court: Yes.
By Mr. Greene:
Q. I will ask you whether or not you saw this defendant down there on either one of those nights?
A. I did.
Q. Which night was he down there?
A. He was down there the last night?
Q. I will ask you whether or not you recognized him?
Mr. Barnett: I object—
70 Q. At the place?
The Court: Overruled.
Mr. Barnett: An exception.
A. I did
Q. Which one did you recognized him as?
A. I recognized him as the one that held the gun.
Mr. Greene: I think that is all.
CROSS EXAMINATION
71 By Mr. Barnett:
Q. Now, Miss Tusken, referring to the exhibit introduced for identification,—comparison, I will ask you if you will state about how far from the entrance at Grand avenue was the arch you speak about to the entrance of the circus—about how far was it from the sidewalk to the arch?
A. Why, it was,—from the sidewalk to the arch it was about just—not over—not very far: about five feet.
72 Q. How far was it from the menagerie to the big top? As far as from here to the table?
A. Yes.
Q. Indicating about 12 feet. You say to the left of the menagerie were these horse tents. Now about how far were the horse tents from that menagerie, measuring this same way in the room?
(No answer.)
A. I don’t think I can tell how far they were: I don’t remember
of seeing them. We didn’t notice them.
73 Q. You met the girls,—you met, you three girls, you and Jimmie, about the time you got under the arch?
A. Yes, sir.
Q. Before you got to the tent,—to the side show—You talked there a little while?
A. Yes.