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08/30/63 STATE v. MARVIN L. KLINE

August 30, 1963

STATE
v.
MARVIN L. KLINE



Appeal by Marvin L. Kline from an order of the Hennepin County District Court, Levi M. Hall, Judge, denying his alternative motion for judgment notwithstanding the verdict or for a new trial after a conviction of grand larceny in the first degree.

Certified to U.S. Supreme Court January 30, 1964.

Rogosheske, Justice. Mr. Justice Thomas Gallagher took no part in the consideration or decision of this case.

SYLLABUS BY THE COURT

-- larceny -- sufficiency of evidence.

1. Under an indictment for the crime of larceny by trick or false pretense which charges alternative theories of defendant's guilt, where the record contains evidence supporting either or both theories, the evidence sustains the verdict.

-- trial -- instructions -- failure to withdraw issue not supported by evidence.

2. Where there is insufficient evidence to support the submission of one of the alleged means of committing the offense charged, the court's failure to specifically withdraw the issue in the charge did not result in prejudicial error where the charge submitted only the issues having evidentiary support and when read and viewed in its entirety is clear, complete, and impartial.

-- trial -- opening statement -- reference to evidence subsequently ruled inadmissible -- effect.

3. No prejudicial error or misconduct on the part of the prosecution resulted when in the opening statement it referred to a collateral transaction not embodied in the indictment, where the reference was made in good faith with the permission of the court; the admissibility of the supporting evidence was within the discretion of the court; and when subsequently ruled inadmissible, the jury was given a corrective instruction.

The opinion of the court was delivered by: Rogosheske

Defendant was indicted, tried, and convicted of larceny in the first degree for obtaining money from the Sister Elizabeth Kenny Foundation, Inc., his employer, in violation of Minn. St. 622.01 and 622.05, by falsely representing that as the executive director he was entitled to receive a salary increase from $25,000 to $48,000. His motion for judgment notwithstanding the verdict or for a new trial was denied and he appeals.

The assignments of error supporting defendant's claim that he was denied a fair trial present the following questions for review:

(1) Whether the evidence is sufficient to support the conviction.

(2) Whether the trial court committed prejudicial error in the ...


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