*1 еven re- anyone was not made offense prosecution. with the motely associated BUCHER, Appellant, Dale Plaintiff and that the cross-exami-
Accordingly, hold we improper. was not nation STALEY, Defendant Richard F. III Appellee. Photograph
Alleged Improper Use 12607. No. the trial contends that Defendant allowing prosecution erred in Dakota. Supreme of South Court child photograph deceased exhibit the victim’s mother. April 1980. Argued specific inquiry The trial court made 22, 1980. Decided Oct. for which regarding purpose the State 26, 1980. Nov. Denied Rehearing Al- photograph was offered. though purpose-identification that substantially ac- least
victim-had been at witnesses, we
complished through other not abuse
conclude that the trial court did overruling ob- defendant’s
its discretion in Kaseman,
jection. State v. 273 N.W.2d Satter, 485, 242 State
(S.D.1978);
N.W.2d 149
IV
Sentence contends that his sen
Defendant is forty-nine years
tence of ten months
excessive violates constitution and thus his pun cruel guarantee against
al and unusual agree.
ishment. We do not The sentence Al
imposed statutory is within the limits.4 substantial,
though certainly the sentence as that would
cannot be characterized
shock the conscience of Court. Accord aside. State
ingly, set will not be
Helm,
(S.D.1980).
V
We have considered defendant’s conten- was
tion the evidence insufficient
prove that was sane at the time the he that it
offense committed conclude
is without merit.
Conclusion of conviction is affirmed.
All the Justices concur. addition, $25,000 may felony. ry. First-degree manslaughter In fine of be im- is a Class 1(2). felony punisha- posed. SDCL 22 6 22-16-15. A Class imprisonment penitentia- ble life in the state
804 *2 Falls, $30,000. Appellee judgment Burke, plaintiff moved Sioux John E. verdiсt, III, which after Gridley, appellant; John N. Sioux trial enter- Falls, granted, hearing, on brief. ing dismissing appellant’s com- Danforth, Jr., Danforth, Danforth J.G. plaint. Falls, Johnson, for defendant and & Sioux *3 appellee. following has issues Appellant raised the in (1) erred appeal: on The trial court
ANDERST,
Judge.
Circuit
the
granting
probable
of
question
verdict because the
prose-
action for malicious
This is an
jury;
an issue for the
properly
cause was
originates
a mental illness
cution.
It
allowing
(2)
in
trial court erred
not
apрellee against
The
proceeding
initiated
the
con-
pleadings to
appellant
verdict
to amend his
appellant.
jury
From a
in favor
the
adding
proof by
exemplary
a
form to the
the
the trial court entered
appellant,
of
(3)
еrred in
and
The trial court
damages;
v.
reverse.
judgment n. o. We
trial,
order for new
granting a conditional
Appellant
appellee
and
had known each
awarded,
con-
properly
since the
years on a social basis.
other for sevеral
sidered, are not excessive.
and his wife incurred mari-
appellant
When
difficulties, appellant’s
family
wife and
cor-
argues
tal
trial court was
Appellee
the
Al-
appellee
family.
probable
moved
and his
ruling
in with
rect
the question
in
fact,
appellant
between
and
question
tercations occurred
was a
of law rather
than
abuse,
involving
and
appellee
appellee
verbal
threats
where
also
especially in this case
argumentative and threat-
the
fоrce.
had
of counsel and
Several
the defense
advice
ening telephone conversations were also
2.1 At first
protection of
27A-9
appellant
appellee
and
and his
ar-
glance
held between
would
that we have
appear
concerning
family
opinions
members.
rived at irreconcilable
However,
past.
the
a careful
this
in
issue
attorney,
Appellee,
practicing
a
made an
have
the
that we
review of
cases shows
deputy
attor-
apрointment to see the
state’s
In our
an
distinction.
followed
established
to
ney
charge
hearings
in
of mental illness
Bell,
issue,
5
on the
Jackson
first decision
against
bringing
appel-
discuss
an action
671,
65,
264
N.W.
673-74
S.D.
58
lant.
to her the
Appellee disclosed
same
(1894),
following gеneral
we set out
the
at
facts
information he testified to
rule:
meeting,
deputy
their
the
trial. After
mixed
question of
cause is a
probable
attorney prepared
application
state’s
an
fact,
such a
question of law
and when
apрellant
emergency
alleging
treatment
to
alleged,
evidence has been
defense is
ill,
mentally
signed by appel-
be
which was
thereto,
credibility
its
offered
relation
Upon receipt
lee
appli-
oath.
of the
under
n
the
is to be considered and determined
cation,
county
chairman
the
the
board
to what
jury,
proper
instructions as
emergency
mental
warrant
illness issued an
facts,
exist,
they
constitute or fail
if
Appellant
was detained and
detention.
cause;
when, as
probаble
constitute
placed
custody. Several weeks later fol-
case,
of the
belief
in this
defendant’s
lowing
hearing
proceeding
a
was dis-
a
plaintiff
prove
on
facts relied
missed.
essential,
it is
probable
want of
cause is
Appellant
аgainst ap-
then instituted suit
submitted
always
question
a
of fact
be
pellee
prosecution.
for malicious
The case
for determination.
came
regularly
on
for trial. All issues were
Bishop,
We
with
18 S.D.
Krause
followed
to a
had
submitted
after
298, 300,
(1904):
435
properly instructed them as to the law.
facts,
so undis-
general
verdict
or not the
when
returned
in favor
Whether
cause, or
appellant
puted,
against appellee
in the sum
constitute
Repealed by
Sess. Laws
ch.
§ 126.
not,
whether or
where the defendant act-
depending upon the circumstances in each
counsel,
upon
ed
the advice of
after a full
case.
him,
statement of the facts to
and there
Advice of counsel does not neces
is no
evidence
acted
defendant
sarily
shield a
against a charge of
faith,
maliciously or in bad
other than
prosecution.
malicious
Huntley v. Har
proof
plaintiff
that the
acquitted,
berts, supra.
good defense,
To
constitute
protected,
questions
defendant
are
the advice of counsel must have been
law for the court.
sought
faith,
in good
motives,
from honest
In Malloy Chicago,
Ry. Co.,
M. & St. P.
good
and for
purposes, after a full and fair
(1914),
N.W.
we held that
disclosure of all facts within the accuser’s
the trial court was correct in ruling on the
knowledge
information,
and the advice
cause where the record
received must have been
good
followed in
any
failed to reveal
substantial conflicts in
Bell,
faith.
supra;
Jackson v.
Kunz v.
*4
Next,
testimony.
the
Rehfeld,
in Wren v.
Johnson, supra.
If the facts are undisput
201, 204,
37
323,
157
(1916),
S.D.
N.W.
324
ed,
law,
it
a question
Johnson,
is
of
Kunz v.
said,
we
there is a substantial con-
“[W]hen
supra, but when the facts
dispute,
are in
it
flict
facts,
in the evidence as to the
then the
jury question.
Rehfeld,
is a
Wren v.
supra.
questions
probable
of
cause and of acting
under advice of counsel are for the jury.”
Likewise,
immunity granted by
by
This was followed
Lyons,
Pierce v.
42
statute is not absolute.
prose
A malicious
543,
(1020),
S.D.
806 character, necessity leaves court de- the law the damages.2 The trial
exemplary
to
as not
to the
motion
amend
unbiased
nied the
assessment
an amendment
jury,
sense of the
timely.
The allowance
and common
sound discretion
is within the
pleadings
the
Mental suf-
according it broad discretion.
Dinneen,
court,
40
v.
Leggett
,
the trial
wrongful
act
fering resulting from such
(1918), arid unless
N.W. 235
167
S.D.
disgrace attending
prop-
it is
from the
discretion,
an
of such
been
abuse
there has
erly
subject
compensatory damages,
the
with the exer-
will not interfere
this Court
largely within the discretion of
which are
Chicago,
Edwards
of that discretion.
cise
proper
under
instruction
the
Co.,
504, 110 N.W.
Ry.
M. & P.
St.
This Court will seldom interfere
court.
allowing an
test
all of
a'verdict in
cases unless
with
such
6-15(b)
15-
amendment
demonstrаte
circumstances
preju-
will be
opposing party
whether the
influence, bias,
improper
under some
acted
amendment;
e.,
i.
did he have
diced
Lord,
passion,
prejudice.
or
Eller
issue,
litigate
opportunity
a fair
(1915). Damages,
be
have been prejudice. passion or FOSHEIM, JJ., and con- HENDERSON prose has
A who been cur. maliciously and without cuted MORGAN, J., WOLLMAN, J., dis- C. expense for to which may recover sent. put injury as he been well as for has personal feelings or mortification. his ANDERST, sitting Judge, Circuit Bell, supra. instructions of Jаckson v. J., DUNN, disqualified. dam the court allowed the to award WOLLMAN, (dissenting). Chief Justice humiliation, (1) ages upon appellant’s based court, for I I would affirm the trial think anguish; embarrassment mental in which the that this those cases (2) against expenses defending himself undisputed facts the existence of establish evidence, petition. The the mental illness legal proceed probable cause initiate light appel taken in the most favorable ings. The mental illness board fact that the lant, out-of-pocket actual shows allegations in the $4,000. did not find that Appellant was also excess been clear and con petition proved had sleep; he concen unable to was unable to suffered; work, vincing evidence not be construed as should trate on his which and he evidence of lack cause. extremely There no Wad distraught. lington Coyne, measuring accurate means detriment suffered the victim in actions this provisions
2. This motion was made under the 15(b). of SDCL 15-6- I am authorized to state that Justice Mor- Richard Dаna, W. Golden, Sabers of gan joins in this dissent. Rasmussen, Moore Falls, & Sioux for de-
fendants appellees.
PER CURIAM.
Plaintiffs
initiated this action in small
claims court. Defendants transferred the
action to circuit court for
trial
jury. At
Krell,
Vince KRELL and Maxine
case,
the close of plaintiffs’
the trial court
Appellаnts,
Plaintiffs and
granted defendants’ motion for a directed
verdict.
appeal.
Plaintiffs
We dismiss the
15-39-23;
KAPPENMAN,
appeal.
Hauswirth
S.,
J. W.
D. D.
and Ana
(S.D.1980);
Rola,
Hartigan,
Decided Nov.
Bradley Bonynge, Falls, G. Sioux
plaintiffs appellants.