The plaintiff in error was indicted, tried, and convicted in the circuit court of Faulk county of the crime of murder, and sentenced to the penitentiary for the period of his natural life. A motion for new trial’was made and denied, and the case is now before us for review on writ of error.
The plaintiff in error, whom we shall hereafter denominate defendant, contends, first, that the evidence is insufficient to support his conviction; second, that the court erred in the
It appears from the evidence that the defendant and the deceased, Edward B. Coleman, were brothers, and resided together on a cattle ranch in the northwesterly portion of Faulk county, and, with the exception of a hired man who was occasionally in their employ, they were the only persons occupy-, ing the residence on said ranch; that on the afternoon of tie 30th day of April, 1902, the deceased died from the effect of a gunshot wound inflicted upon his person; that the ball passed through the body of the deceased, practically destroying the heart; that the defendant, soon after the fatal shot was fired, left the deceased upon a bed, and rode some two miles or more to a neighbor, notifying him of the injury to his brother, and that he subsequently notified other neighbors of the fact that his brother was shot, and requested them to go with him to his residence. Mr. Solly, the first neighbor to arrive, found the deceased dead; and during the night of that day the remains were placed in a box prepared for the occasion, and the defendant early the next morning started with the body of his brother for Mellette, a point in Spink county about 50 miles distant from the ranch, where he intended to take the evening train for Winona, Minn., near which place he and his brother formerly resided. Defendant gave no notice to the authorities of Paulk county of the death of his brother, and no coroner’s
The evidence tending to prove the defendant guilty of the shooting of his brother was entirely circumstantial, and the motive claimed by the state to have caused the shooting of the deceased by his brother was to secure the money due upon certain life insurance policies, one of which had been issued to the deceased for $5,000 and of- which the defendant had been made beneficiary by the will alleged to have been executed by the deceased in his favor, and also to secure the sum of $5,000 on a policy of insurance which had been obtained by the defendant by forging the name of the deceased to an application for the same, and which had been issued by the company, but had not in fact been delivered to the deceased, and also to cover up the alleged forgery of the name of the deceased on the second application for $5,000 insurance. It appears from the undisputed evidence that in January preceding the homicide the defendant applied to the Northwestern Mutual Insurance Company for a policy of $5,000 upon his own life, and that he made a will bequeathing the same to his brother, the deceased; that the deceased about the same time applied for a policy of $5,000 upon his life, which was issued to him, and this policy was found in the possession of the defendant, with a will purporting to have been executed by his brother, bequeathing the
The evidence on the part of the state tended to prove a state of facts not only consistent with the defendant’s guilt, but entirely inconsistent with his innocence. State v. Lindley, 13 S. D. 248, 83 N. W. 257. The conduct and contradictory statements of the defendant cannot be • reconciled upon any theory of his innocence of the crime charged. The defendant claims that the shooting was accidental, or that the deceased committed suicide from despondency resulting from large losses of cattle during the spring of the year. The jury evidently arrived at the conclusion that the theory of the state was the true one, and that the defendant was guilty of deliberately taking the life of his brother.
The first alleged error of law complained of is that the court erred in admitting Exhibit 17 in evidence, and allowing it to be used as a basis for comparison of the handwriting by the expert called as a witness by the state. Exhibit 17 is a letter addressed to Frank Turner, and purports to have been signed by defendant. This letter reads as follows: “Faulkton, S. D., 5-22, 1902. Mr. Turner, Dear Sir: I thought I would write you a few lines in regard to my grip, can I have it, I would like to have the clothing. Hoping to hear from you in the near future, I remain, Yours truly, J. P. Coleman.” It is contended by the defendant that the use of this letter for the purpose of a basis for the comparison of handwriting was erroneous (1) for the reason that it was not proven that the letter
The second contention of the counsel is clearly untenable. The letter, in our opinion, was properly admitted as a link in the chain of testimony showing that the grip or valise found in the hotel at Mellette, and in which were the policies for the first $5,000 of insurance issued to the defendant and the deceased, with the will purporting to have been executed by each, were found; it having been proven by the state that it had no other valise or grip claimed by the defendant in its possession.
It is further contended by the defendant that Exhibits 1, 24, 23, 2, 26 — being (1) medical examination sheet, (24) application for insurance, (23) will of defendant, (2) medical certificate, (26) application for additional insurance by the defendant— were erroneously admitted in evidence over the defendant’s objection. This contention is clearly untenable. Under the state’s theory that the defendant applied for this insurance for the purpose of inducing his brother to make such application, and made the will bequeathing to his brother the insurance money for the purpose of inducing the deceased to make a sim
It is also contended by the defendant that the court must first find that the writings proven or admitted to be genuine are properly in the case as evidence before they can be used as a standard of comparison of handwriting, and that a writing not properly admitted in evidence as a part of the case cannot be properly used as a standard or basis for the comparison of handwriting. In Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. 933, 31 L. Ed. 778, the supreme court of the United States uses the following language: “But where other writings admitted to be genuine are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury with that of the instrument or signature in question, and its genuineness inferred from such comparison.” Mr. Greenleaf, in his work on evidence, § 578, says: “Where other writings admitted to be genuine are clearly in the case, here the comparison may be made by the jury, with or without the aid of experts.” This was the old rule, but the modern rule seems to be that the writing used as a basis of comparison may
It is further contended by the defendant that Exhibit 82, being a letter purporting to be signed by Edward B. Coleman, addressed to the insurance agent, in regard to the taking of $5,000 additional insurance, with envelope and postmark; Exhibit 27, a request for additional insurance, dated March 19, 1902, purporting to have been signed by Edward B. Coleman; Exhibit 4, a medical certificate of health of Edward B. Coleman, dated March 19, 1902, purporting to have been signed by his physician; Exhibit 30, a note dated March 19, 1902, given by J. P. Coleman to the insurance agent for the first premium on additional policies of the defendant and Edward B. Coleman; Exhibit 28, policy for $5,000 on the life of Edward B.
It is further contended by the defendant that the court erred in permitting certain questions to be propounded to the witness R. EL McCoy, a witness for the defendant, on cross-examination. Mr. McCoy was a banker at Mellette, and had testified that the defendant and the deceased had had some business with his bank; that in the early months of the year 1902 they had some money there on deposit; that the deposit was in the name of the defendant; and that he and his brother both drew checks against it “by virtue of their understanding with me.” On being recalled, the witness was further asked on cross-examination by the state’s attorney what this agreement or understanding was. He was also asked the following question: “What transaction took place between you and Ed and Joe with reference to the funds upon which Ed was to draw checks?” He replied, “It was funds that was received from their brother’s life insurance — Prank’s life insurance”— and proceeded to state what the arrangements were. It will be observed that the portion of the answer in reference to the deposits being funds that was received' from their brother’s life insurance was not responsive to the question, but no motion was made to strike out the irresponsive portion. We are of the opinion that the question was perfectly proper on cross-examination, and the state was not responsible for that portion of the answer not responsive to their question. As the witness had testified as a witness for the defendant that he had had transactions with the two brothers by reason of an agreement between them and himself, it was competent for the state to
At the conclusion of the trial the defendant requested the court to give the following instruction, which was refused, and its refusal assigned as error, which instruction reads as follows: “The court instructs the jury that although parol proof of the verbal admissions or statements of a party on trial in a criminal cause, where it appears that such admissions or statements were understandingly and deliberately made, often afford satisfactory evidence, yet, as a general rule, the statements of a witness as to the verbal admissions of a party should be received by the jury with grave caution, as that kind of evidence is subject to much imperfection and mistake. The party himself may have been misinformed or may not have clearly expressed his meaning, or the witness may have misunderstood him; and it frequently happens that the witness, by unintentionally altering a few of the- expressions really used, gives an effect to the statement. completely at variance with what the defendant did say. But it is the province of the jury to weigh such evidence, and give it the consideration to which it is entitled in view of all the other evidence in the case.” It is contended by the defendant that the instruction was applicable to the facts in this case, for the reason that the state had introduced in evidence statements made by the defendant on his way to Mellette and at Mellette during the days following Edward’s death. The court by such instruction would clearly invade the privince of the jury, whom the law makes the sole judges of the credibility of witnesses and the weight to be given to their testimony. The statements made by the defendant proven by the state were not admissions of guilt, or claimed to be such by the state, but they were con
It is further contended that the court erred in refusing to give the following instructions: “If any one of the jury, after having considered all of^ the evidence in this case, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt, then the jury cannot find the defendant guilty.” This instruction, it will be noticed, is substantially a copy of an instruction requested in State v. Phelps, 5 S. D. 480, 59 N. W. 471, and refused by the trial court, and which refusal was held not to be error by the Supreme Court of this state. In that case the court said: “It is fair to presume that each juror possessed ordinary intelligence, and we are of the opinion that the court’s charge, taken and viewed as an entirety, was abundantly sufficient to enable each juror to fully understand his relation to the case and to his fellow jurors, ’and to realize the individual responsibility resting upon him as a member of that jury, which, considered with the further fact that the jury was polled, convinces us that no juror consented to the verdict until his own mind was convinced of the defendant’s guilt beyond a reasonable doubt.! ’ In the case at bar the court, in its charge to the jury, used the following language: “Your position in this case is a responsi
The court, on its own motion, instructed the jury as follows: ‘‘The evidence in this case is what is known as ‘circumstantial’; that is, no person who has testified was an eyewitness of the alleged crime, and the state seeks to connect the defendant with the crime by showing a chain of circumstances leading up to it, and connected with it and the defendant; and this is circumstantial evidence. And I will say to you that the evidence which has been received in this case is legal and competent, and if it is, in your mind, of such a character as to exclude every reasonable theory or hypothesis other than that of the defendant’s guilt, beyond a reasonable doubt, then and in that event it should be given the same weight by you as would direct evidence of the fact alleged. * * * Circumstantial evidence, when competent, and when complete and satisfying to your minds, as has been charged, is entitled to the same weight that direct evidence is.” It is contended by the defendant that the court by this instruction undertook to, and did, compare the probative force and effect of the two species of evidence — circumstantial and direct — and that when he did so he invaded the province of the jury. We are of the opinion that the court committed no error' in giving this instruction. The law is correctly stated therein, and such an instruction in
It is further contended by the defendant that the case
One of the grounds for motion for new trial was that a juror who sat in the case was disqualified. It is urged on the part .of the state that this does not constitute a ground for new trial, as the only grounds for new trial are designated by section 4-30 of the 'Code of Criminal Procedure, which provides: “The court in which a trial has been had upon an issue of fact, has power to grant a new trial, when a verdict has been rendered against the defendant by which his substantial rights have been prejudiced, upon his application, in the following cases only: (1) When the trial has been had in his absence, if the indictment or information is for felony. (2) When the jury has received any evidence out of court other than that resulting from a view of the premises. (3) When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented. (4) When the verdict has been decided by lot, or by means
It is further contended by the defendant that he is entitled to a new trial upon the ground of newly discovered evidence. This evidence was in effect that a person residing at Millard, in Paulk county, would testify that the deceased said to the witness some time in March, 1902, that he intended to take out additional insurance upon his life. This evidence was cumulative, as similar evidence was given by the witness Nevins on the trial, who testified that the deceased had about that time made a similar statement to him. As a general rule, the courts decline to grant new trials upon the ground of newly discovered evidence where it is cumulative. Petefish v. Watkins, 124 Ill. 384, 16 N. E. 248; Wilson v. Seaman, 15 S. D. 103, 87 N.W. 577. In the látter case this court held, in effect, that a new trial might be granted upon the ground of newly discovered cumulative evidence if, in the opinion of the trial court, the evidence would probably produce a different result on the new trial, but, unless such would probably be the result, a new trial should be denied; adopting the rule laid down in the recent case of Oberlander v. Fixen, 129 Cal. 690, 62 Pac. 254. We are of the opinion that in the case at bar there was no probability
Finding no error in the record, the judgment of the circuit court and its order denying a new trial are affirmed.