6 S.D. 89 | S.D. | 1894
Plaintiff in error was convicted in the Coding-ton county circuit court of the crime of selling intoxicating liquors contrary to law. The case is here on writ of error.
In the formation of a trial jury, S. B. Donahue was • called as a juror. On examination as to his qualifications he testified that he knew what purported to be the facts in the case; that he had formed an opinion, founded mostly on newspaper reports, and still held it, that would “certainly” require evidence to remove, but that, in his opinion, he could, and would, if a juror, try the case fairly and impartially upon the evidence and instructions of the court. He was challenged for cause by plaintiff in error, and the defendant excepted. Section 7361, Comp. Laws, says: “No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.” Under this section, as construed and applied to facts in such cases as Stokes v. People, 53 N. Y. 164; Balbo v. People, 80 N. Y. 484; Spies v. People, 122 Ill. 262, 12 N. E. 865, and 17 N. E. 898; and Stout v. State, 90 Ind. 1,—this juror was probably competent, although we feel at liberty to express the opinion that it would have been better to have allowed the challenge. The law
It is claimed in the assignment of errors that the indictment is bad for duplicity in that it charges sale to divers persons at divers times. This point was not argued in counsel’s brief, but the question was fully considered in State v. Boughner (S. D.), 59 N. W. 736, and for reasons there stated it was held otherwise.
It is also assigned as error that witnesses were allowed to testify whose names were not indorsed on the indictment. Section 7236, Comp. Laws, requires that the names of the witnesses examined before the grand jury shall be inserted at the foot of the indictment, and section 7283 declares the effect of a failure to do so. These sections were applied in State v. Stevens, 1. S. D. 480, 47 N. W. 546, but we find nothing either
Upon the trial a number of witnesses were sworn whose testimony is not given. Upon the conclusion of the state’s evidence the court, upon motion of defendant, it would seem from the abstract, though the ruling is not expressly stated, required the state to elect ‘ ‘upon which of these sales they will stand and rely for conviction, and the state elected to stand upon the testimony of Jerry -E. Kelly, or the sale testified to by him.” Defendant then asked the court to advise the jury .that the evidence of this witness would not justify a conviction. The court declined to do so. Plaintiff in error makes the same pl^im heye. The ydthegs testified th^t he bought ‘ ‘lager beep
It is further assigned as error that the trial court “refused to allow defendant’s counsel to read to the jury the whole of the statute defining the crime,” to-wit, what is known as the “Prohibitory Law.” In Massachusetts — which has probably gone as far as any state in adopting and maintaining the rule that in a criminal case the jury is the judge of the law as well as of the facts — it is held that the court may, in its discretion, and without error, limit counsel to the reading of the sections or provisions of the statute upon which the prosecution is
It is next insisted that the court erred in not allowing defendant a new trial on the ground of the unauthorized separation of the jury while they were deliberating upon their verdict. The facts appear to be as follows: While the jury were considering the case, a fire was discovered in the courthouse. The judge directed the bailiff in charge to take the jury out of the building, and beep them together. Upon reaching the outside door, they encountered an excited crowd, and the bailiff was unable to keep the jury compactly together. They in fact separated from each other and from the officer for a short time “five minutes at the Outside.” They were then gotten together, and so kept, until, the fire having been extinguished, they were, by the direction of the judge, taken to a restaurant for their dinner. During their return in a body with the officer, one of them stepped inside the door of a grocery, the rest, with the officer, standing at the open door, and picked from the counter or shelf a package of tobacco, holding it up, and nodding to the clerk. He then, no word having been spoken, rejoined the officer and his cojurors at the door. Another juror stopped with the officer and jury at another grocery, and handed the proprietor a memorandum of goods to be sent to his home. That a clerk then present, said that the juror’s wife had ordered some goods. The juror told him not to duplicate such goods as his wife had ordered. . This juror makes affidavit that he had no conversation with the clerk or any other person, except his fellow- jurors, concerning or relating to this case. We confess to a little hesitation upon these facts. In Peterson v. Siglinger (S. D.), 52 N. W. 1060, we intended to express ourselves in favor of a reasonably strict rule for the protection of juries from possible outside interference, not because we believed in that case that the verdict was corrupt, but because we believed that the enforcement of such
The only other questions raised are either such as were passed upon in State v. Becker (S. D.), 51 N. W. 1018, or questions relating to the constitutionality of specific sections or provisions of the law, not involved in this case, and hence not available to plaintiff in error, or legitimate questions for discussion upon this hearing. See State v. Becker, supra. The judgment of the circuit court is affirmed.