20 S.D. 1 | S.D. | 1905
Upon an information duly filed, the plaintiff in error was convicted and sentenced for the crime of grand larceny, and the case is before us on a writ of error to the circuit court of Stanley county. The plaintiff in error, whom we shall in the future designate as the accused, has assigned numerous errors alleged to have been committed by the court in the admission and rejection of evidence, refusal of the court to direct a verdict in his favor, and in the court’s instructions to the jury.
The crime charged in the information is the larceny of a certain colt alleged to be the property of one W. L. Montgomery, and upon the trial it was shown that the colt claimed to have been stolen was taken from the possession of Montgomery’s agent, one Livingston, who seems to have had charge of a number of horses and colts belonging to Montgomery, kept on a ranch in Stanley county; and it appears from the evidence of Livingston himself that Montgomery was the owner of the property, and resided in Chamberlain, in Brule county. Montgomery was not introduced as a witness on the trial, and the proof of the alleged taking and ownership was proven by said Livingston and by the admissions of the accused. Upon the conclusion of the evidence on the part of the state, counsel for accused moved the court to direct a verdict in his favor on the ground that the non-consent of the owner to the taking of the property had not been proven; and this motion was renewed at the close of the defendant’s evidence, and at the close of the evidence in rebuttal, and denied.
It is further contended by the accused that the court erred in its instructions to. the jury, one of which was as follows: “This information charges that the defendant, Bjelkstrom, in this county and state, on or about the 15th day of June last, did, by fraud or stealth, take, steal, and carry away one certain colt then and there of the value' of $20, with intent to deprive the owner thereof; the same colt being then and there the property of one Montgomery, and in charge of the complaining- witness,-John Livingston.” The court undoubtedly committed a slight error in stating that it was alleged in the information that the property .claimed to have' been stolen was “in charge of the complaining witness, John Livingston,” as the last-quoted words were not in the information. The court, ,in making this statement, was evidently stating the substance of the information and the claim made on the part of the state, and we fail to see in what respect the accused sustained any prejudice bjr reason of this erroneous statement. It was not necessary to allege this fact in the information, and the statement of the court to the jury that this fact was stated therein certainly could not constitute prejudicial error, as the evidence in the case all tended to show that the property, though the property of Montgomery, was in the possession of Livingston at the time it was taken.
The following- portion of the charge of the court is also excepted to and assigned as error: “You also- have the advantage in this case, gentlemen of the jury, of being men who- are acquainted with the situation in this country, and the manner of procedure in relation to stock in ’all these little details which go- to form your general knowledge of the character of the business and the way property like this is handled; and it gives you an opportunity to use your knowledge in regard to these matters to better advantage than it would a person who was not acquainted, in judging the rightful
It is also contended by the accused that the court erred in giving the following instructions: “It is claimed on the part of the state that the defendant on or about that date, in this county and state, took this property and appropriated'it to his own use by fraud or stealth, with intent to deprive the owner thereof. I will say to you that the placing of one’s brand upon property, and taking the property into his possession and putting it in his pasture, is -prima facie evidence that he intends to appropriate it and has appropriated it. So the question for this jury, and probably the main question, will be, who was the owner of this colt?” It is insisted on the part of the accused that this instruction in effect took from the jury the question of intent and the question of mistake on the part of the accused, and thereby invaded the province of the jury. The latter part of the instruction, namely, “So the question, for. this jury, .and probably the main question, will be. who' was the owner of this colt?” standing alone, may be conceded to be erroneous; but read in connection with other portions of the charge subsequently given to the jury, it is clear that this apparent error could not have in any manner prejudiced the'rights of the accused. In subsequent portions of. the charge the .court instructed the jury as follows: “If .you. find beyond a reasonable doubt that the colt belonged to Montgomery, and was in charge of the complaining witness, and that the defendant took it, and placed his brand upon it--and took it into his'possession, and if you find that he took it with intent tó' deprive' the
It is further contended by the accused that the court, in its remarks made at the time it rendered judgment in the case, proves conclusively that the court not only sentenced the accused for the crime charged in the information, but also for the crime of perjury. The language of the court is as follows: “If you deem the sentence severe in this case, you may attribute about one-half of it to the perjury you have committed in this trial.” It is to1 be remembered that these remarks of the judge were made after the verdict of the jury was rendered, and after their duties had ended. The Legislature has deemed it proper, in authorizing the court to pronounce sentence in nearly all criminal cases, to fix a maximum and minimum limit of such sentence, evidently for the purpose of enabling the court, in.
The counsel for the accused has assigned as error several rulings of the court in the admission and rejection of evidence, and argued the questions relating to the same at considerable length both in their brief and oral argument, but it must suffice to say that we are of the opinion that the contention of the accused that the court committed error in these rulings is untenable. To take up and discuss these several alleged errors would, in our opinion, serve no useful purpose, and hence such a discussion is -omitted.-
Rinding no error in the record, the judgment of the court below is affirmed.