*1 property of an interest in real The trial court pre the sale awarded Toman judgment $28,000.00 Toman’s house was sold. interest on the princi resulted when pal September 26, 1981, sum from the date 57A-2-107(2) provisions of SDCL of the fire. prejudg Toman is entitled to things sale of at- provide that the “other only ment interest from the date of the realty capable tached to of severance refusal of the claim since there was no material harm thereto is a without ... showing that dilatory insurer was in con goods the sale of whether tract for ... ducting investigation of the claim. by the subject matter is to be severed North River Insurance Co. Golden it forms buyer by though or the seller even Co., Rule Construction contract- part realty of the at the time of (S.D.1980). We note that the summons and ing, parties by and the identification complaint was served on Toman on Decem severance.” present effect a sale before ber ninety days less than after Toman and Van undisputed Here it is the fire loss. Since there was no other property mutually identified Collins claim, evidence about the refusal of the we public in fact sold at the ing sold. It was fix the date of refusal as of December September 1981. auction sale on begin 1981. Interest shall to accrue from 57A-2-501(2) recognizes SDCL that date. interest in seller retains insurable “[t]he Accordingly, affirmed in long any security goods so as title to or principal only sum with modification him goods remains in interest prejudgment to the interest. by the identification is the seller where insolvency or may alone he until default or FOSHEIM, C.J., WOLLMAN, buyer notification to the that the identifica HENDERSON, JJ., DUNN and concur. goods final substitute other tion is HERTZ, Judge, sitting Circuit for MOR- those identified.” In addition GAN, J., disqualified. 57A-2-509(3), provides: SDCL (1) “In not within subsection
(2), passes buyer the risk of loss to the receipt goods
on his of the if the seller is merchant; passes otherwise the risk (Em- buyer delivery.” on tender of supplied).
phasis
No one contends Toman as the seller was Dakota, a “merchant” as defined in SDCL 57A-2- of South Plaintiff STATE Further, Appellee, 104(1). it is clear that Toman delivery” made the “tender of never 57A-2-509(3). required by house as SDCL BRAUN, Larry H. Defendant occupy- Van Collins knew that Toman was Appellant. basis; part-time the house at least on a No. 14260. an- he further knew from the auctioneer’s that the removal the house nouncement Dakota. Court of South negotiated would have to be with Toman February used the house occa- Considered on Briefs since Toman proper- sionally, personal but also retained 11, 1984. July Decided agree ty in it. We with the trial court interest, Toman had an insurable SDCL
58-10-8, fire in the house at the time of the payment
loss and the insurer should be pursuant policy to the terms of its
made
insurance. *2 Wendt, Gen.,
Richard H. Atty. Asst. Pierre, plaintiff for and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief. Kolker, Drew C. Johnson Maloney, Fritz, Hogan Johnson, Aberdeen, & for de- appellant. and fendant DUNN, Justice.
This is an from a driving conviction sentence for while under the influence of alcohol. We affirm. evening of February On the a Redfield, Dakota, city policeman South ob- appellant Larry served H. Braun back his city vehicle across a street apparently hit stopped another vehicle. The officer bar, appellant, coming who was from a questioned alleged him about the accident. During the conversation the officer noticed strong coming appel- a odor of alcohol lant. then appellant per- The officer tests, sobriety appellant form some failed. The officer also noticed that swayed grabbed lant the vehicle for balance. appellant
The officer arrested for DWI Spink County and took him to the Sheriff’s Office. Three other officers who came in appellant evening contact with testi- slurred, appellant’s speech fied was bloodshot, eyes were dilated and and he alcohol; they agreed smelled of all that he Appellant, was drunk at the time. who test, take a blood refused to he did not believe he was intoxicated that evening.
An information
filed on March
appellant
charging
driving
with
while
the influence
under
of alcohol.
guilty
requested
pleaded
Following
one-day
guilty.
judge imposed
found
The trial
$300.00,liquidated
$12.00,
fine of
costs of
$286.53;
and other costs of
he also sen-
sixty days
jail,
tenced
days
forty
suspended upon compliance with
terms,
certain
and he revoked
driving privileges
forty-five
days.
ap
raises two issues on
peal. His first contention is that there was
punishment
possible
tion of
perjury,
we
produced at trial
evidence
insufficient
have specifically
It is well settled
held that a court can con-
conviction.
support his
sufficiency of evi-
determining the
sider its belief that a defendant
at trial
that in
lied
presented is
question
appeal,
when
dence
defendant.
evidence
or not there is
whether
264 N.W.2d
*3
jury, is
which,
by the
record
believed
may
factor
be considered
guilt
finding
to sustain a
sufficient
judge in
to
addition
numerous other fac-
making
In
such
yond a reasonable doubt.
Conger,
tors.
v.
See State
accept
determination,
will
that
this court
(S.D.1978).
inferenc-
evidence,
favorable
and the most
The
of conviction and sentence
therefrom,
fairly drawn
es that can be
are affirmed.
verdict.
State v.
support
which will
(S.D.1983);
Jorgensen,
FOSHEIM, C.J.,
MORGAN, J.,
Moeller,
N.W.2d 93
v.
State
cur.
replete
in this case is
The record
WOLLMAN, J.,
specially.
concurs
appel
evidence of
competent, direct
with
importance
particular
Of
is
guilt.
lant’s
HENDERSON, J., dissents.
law enforce
testimony of four different
WOLLMAN,
to
condition on
(concurring special-
ment officers as
Justice
Therefore,
appel
evening.
we find
ly)-
merit.
lant’s claim to be without
specially only
emphasize
write
to
is that the
Appellant’s second contention
attorney specifically
fact that
the state’s
his discretion when sen-
abused
any
appellant
claim that
disavowed
so,
doing
in
violated
tencing appellant, and
punished
having
for
exercised his consti-
statutory
appellant’s constitutional and
tutional
trial.
Specifically, appellant complains
rights.
attorney’s opening
Following the state’s
than the
his sentence is more severe
sentencing hearing, appel-
statement at the
first-time DWI of-
given
sentence
to other
part by saying,
in
responded
lant’s counsel
was is-
fenders. He believes the sentence
of some defendant be-
I’ve never heard
exercising
punish him for
his
sued to
case to
ing punished
he takes his
because
a chemical test and to have a
to refuse
Battey
that’s what Mr.
trial and think
committing perjury
allegedly
and for
in this case.
trying
is
to do
at trial.
rebuttal,
attorney replied:
In
the state’s
fails for
Appellant’s contention
misunderstanding,
any
there be
[L]est
First,
a trial
following reasons:
make the
attempting
is not
the State
discretion to fix a sentence with
has broad
it’s made
recommendation
by statute. A sen
in the limits outlined
having
for
way
punish
the defendant
statutory
limits is
tence which within
of counsel
gone to trial.
statement
on
unless it is so
not reviewable
recommen-
point of the
misses the whole
the conscience.
offensive as to shock
State
dation.
(S.D.1981);
Antelope,
behalf,
exception, has been
almost without
ture is
imposing
as the men who have
toward
probative of his attitudes
deemed
it,
*4
founding
served in
since the
of our coun-
for rehabilitation
society
prospects
try,
phrase
spirit
and this
is the
of all law
sentencing.” United
hence relevant
41, 50, 98 S.Ct.
Upon
phrase,
438 U.S.
under our
of life.
I
Grayson,
States v.
582,
(1978).
2610, 2616, L.Ed.2d
590
57
moor this dissent.
is not claim-
punishment.
cruel and unusual
Nor is
argu-
the defendant’s
responding
claiming
he
that the sentence shocks the
an ex-
fashion
ment that the Court should
maintains,
conscience of this Court. He
prohibiting trial courts
clusionary rule
forcefully,
per- most
that the law has not been
a defendant’s
from
into account
sentencing process
equally
in order to
jury
applied
sup-
to him. The record
using
from
a defend-
preclude trial courts
ports his contention.
perjury
impermissible purpose
ant’s
protection
“Equal
requires
of the law
perjury,
him
the Unit-
punishing
of
for that
every person
that the
of
must be
replied:
States
governed by the same rule of law under
law,
garbed in con-
No rule of
even one
and, in
similar circumstances
the admin-
terms,
prevent improper
stitutional
can
justice,
imposi-
istration
criminal
of
perjury.
of
use of firsthand observations
punishments
tion of different
or differ-
integrity
judges,
and their
degrees
punishment upon
ent
one than
office,
fidelity
their oaths of
necessari-
imposed upon
all for like offenses is a
only,
and in
view ade-
ly provide
our
right.”
denial of such
against
quate, assurance
that.
Goodale,
v.
86 S.D.
198
54,
Grayson, supra,
imposing credit our trial put proof. the state on its judges integrity fidelity to and with in exceptions their oaths of office. trial is one of the few Ameri we, law, jurisprudence where I have no doubt but that this court would ordinary partici permit still citizen to quickly imposed set aside sentence pate government. our branch of de principle violation of the that no defendant spise upon, and abolition of inroads exercising his con- should be it, trials, grow perceive as I like rights, right to tri- including stitutional Nation, and by jury, spread al if the record a cancer and across this should establish
153
etc.,
against
I must write
it.1 The exercise of a
sufficiently
were
similar so as to cause
constitutional
cannot be encumbered
unjust.
sentence
Here,
actuality
with the threat or
of a
se
more
five individuals were sentenced on identical
vere sentence
conviction. People v. D.W.I. charges
May 17,
Four,
LaFiura,
404,
Ill.App.3d
49 Ill.Dec.
93
upon pleas
guilty,
received sentences of
1099,
(1981).
so that trial price (beyond price extract sentencing his fully examine opportunity to statutorily paid by way must be factors to consider the procedure and edict) for refusing administrative the blood- imposed,” the sentences which motivated legislature Our state has alcohol test.4 Thus, I Hess, would not at 938. F.2d 32-23-10, adopted sanctions under SDCL case, it so this would remand reverse but implied sentencing consent law. objectively trial could evalu- judge impose sanc- court should additional (or improp- pertinent circumstances ate all simply tions when defendant exercises considerations) influenced his sen- er judge his to a trial. trial For a judge decides that he tence. If the trial remarks, impermissi- to consider such is an considerations, improper was influenced ble consideration. accordingly set aside the sen- he should Again, punishment against to enhance Conversely, tence resentence. prosecutor this appellant, told the penalize appel- he conclude that he did not judge: on his constitutional lant for insistence considering possibility State is so find and he should requesting the Court to at that testi- look thereupon.3 enter order mony through eyes Jury of a Grand is silent as to When concluded, guess, point, but has at this sentencing, one can review reasons for process eminating that no further will be background perceive the record —to testimony. [sic] stage, you will—for sentence. set prosecutorial for en- was a thrust Here, sentencing, immediately before by quick hanced with- punishment followed Attorney allegation made the State’s against drawal. was defenseless falsely at that defendant twice Again, such remark. a later time to the He further alluded fact that process, the prosecutor stat- appellant had a blood-alcohol test. refused (last to the words before Pointedly, allegations, of these because sentenced): *6 Attorney requested jail a thirty-day Now, secondly, the need not defendant sentence. He advocated: have taken the stand this case. He case, the In this unlike cases of four right an absolute constitutional people appeared morning, who here this fact, is, In the remain silent. that in this first of- case the defendant was knows, law Court basic and would exercised, right he fered a to re- have He chose upon. been commented He did fuse a test. that. He blood voluntarily by going defend the he right exercised his and suffered the an oath and on the stand administratively consequences that swearing under oath. That in and of although that done but refusal under changes complexity the or the itself evidences right, claim still the he rights context of differ- defendant’s of conduct and con- ence between his he chose to waive and once people given defendant, duct who were as a takes the stand the State four appeared morning truthfully this anticipates blood tests that he will speak who voluntarily taking (Empha- test. The a blood about his defense. heard Court mine.) supplied case. knows of the sis The Court the areas However, modern-day "felt” he later In a office there was accident. comfortable was, fact, equipment, be this should not difficult to do. collision at testified that there no forged by jury stopped trial the fires defend- all. The testified that he officer Lexington and Concord. thought ant because he defendant was involved get in an accident and wanted to information. prosecutor urged the 4. The never court for arresting simply about officer was mistaken sentence to because of an accident. I have having transpired. It was dark. an accident transcript testimony scoured the first, arresting reveals that he officer which at defendant, trying— hard on this and we are not him for State’s concern falling in trying perjury case this morn- not line like the I’m not other defendants things pleaded guilty. ing got but all of those Court who He job done. in de- entitled to take into consideration This does not discount right to termining type and, what of sentence the overwhelming under given character of sentence weight Nation, reasoned law this grounds this case and it’s those presumption there is a judge the trial that the feels firm about its recom- “impermissible took into account these mine.) (Emphasis supplied mendation. Nichols, siderations.” See State v. 249, which, N.W.2d under these circum- Indeed, judge the trial made no commit- stances, would demand a remand of this ment one or the other towards this so, resentencing. case for Were this not advocacy.5 holding in re- Hess would inscription above the United States Su- quire judge that the have a bona fide belief preme Building would have a hollow perjury defendant committed dur- ring. precious How is the ato perju- he the trial before could consider purchased it trial for was in blood sentencing process. ry in his patriots of the American Revolution and applied, should not be for the throughout history maintained of this sentencing transcript state- is devoid Republic by the men and women have who ments or beliefs of the trial keep borne the brunt of battle to it alive. perjury. Grayson, committed apropos Adams, An thought by Samuel concurrence, special the trial cited early patriot, were these words: “Let us judge, sentencing, expressed that forefathers, contemplate posterity, our had fabricated a defense. defendant and resolve to maintain the case, Whereas, in this there was no such queathed to us from the former for the I remind all that the dif- expression. sake of the latter.” from the first four cases and ference case was that exercised his lant’s by jury
right to a trial and also his Any to submit to a blood test.
refuse
lawyer pit who has ever been in the knows
why prosecutor addressed these re- judge. obviously He
marks to the
trying to influence the to come down appellate posture review silence? 6. The theoretical of this dissent neither 5. How does an fidelity appellate castigates integrity judges determine if the Our rights function nor the *7 person governed by each have been to their oaths of office. The records of first Herrboldt, same rule of law. In Herrboldt v. offenders, plead- D.W.I. to include the four who Henderson, J„ dis- guilty and were on the date sentenced appellate senting, wrote: "Were review treated sentenced, glaringly gross lant was exhibit a superficially the decisions of trial courts sim- sentencing. would re- This dissent great divergences prac- ply rubber-stamped, thought- mand the case that the trial could tice and variations in results would arise be- fully gross disparity and make reflect impression, first tween these courts of determination, any, improper a written effectively nullify concept 'equal considerations in the sentence. ” justice for all.’