24 S.D. 567 | S.D. | 1910
Lead Opinion
The appellant was convicted in the trial court itpon an information charging him with the crime of grand larceny. From a statement in the abstract it would appear that the evidence on the part of the state was entirely circumstantial; there being no direct testimony connecting the defendant with the crime. The defendant has not seen fit to present the testimony in his abstract. The charge of the court is given in full, which said charge was very complete and fair, unless the court erred in not charging in regard to the weight to- be given to circumstantial evidence. The court called attention to- the fact that an offense may be proven by circumstantial evidence, as well as by direct testimony, explained what was meant by circumstantial evidence, and charged very, fully as to the presumption in favor of the defendant and the rule as to reasonable doubt. The defendant made no request whatever for any further charge, but the following appears in said abstract, immediately after said charg-e: “The
After conviction the appellant moved for a new trial, assigning as one ground the failure of the court to instruct the jury ■that, where the prosecution relies upon circumstantial evidence solely, that the evidence must be so 'trong as to exclude every other possible theory than that of his guilt, or else he must be acquitted. And for second ground for a new trial the appellant presented to the court affidavits as to newly discovered evidence which he claims to be material and important, which evidence he alleges he could not, by use of reasonable diligence, have secured and produced at said trial, and which evidence appellant alleges he believes would acquit him of said charge.
On the first ground above stated the only question for our consideration is whether it is the duty of the trial court, of its own motion, to give the instruction asked for; no question being, raised but what such instruction would be proper. Defendant has cited numerous authorities, most of which merely lay down the rule that such instruction would be proper, but only one holding that the failure to give such instruction, when not requested, is error. There are certain states wherein the statutes require the court to give the jury all the law applicable to the case, whether the same shall be requested or not, and it is held that in those states the court is bound to instruct the jury upon the law pertaining to circumstantial evidence, whether a request for such instruction is made or mot. Where the statute does not specifically require the court, on its own volition, to state all the law applicable to the case, but leaves it discretionary to the court in the first place to instruct upon those matters which it believes -to be pertinent to the evidence received in the case, then no error can be claimed for failure of the court to instruct upon any phase
The affidavits submitted upon the other ground advanced upon motion for new trial would tend to show that, after defendant’s conviction, two ' other parties pleaded guilty to committing the same offense, and such parties now stand ready to swear that defendant was in no manner connected with the commission of the oifensc. The granting or refusal of a new trial on newly discovered evidence is largely within the discretion of the trial court, which discretion we do not feel disposed to interfere with, except upon clear showing that such court was in error; and, while it would seem to us that the evidence of these witnesses might be very beneficial to the appellant, yet we have no way of judging the materiality of such evidence, or the weight that would probably be given to it, not having before us the testimony received upon the trial, which testimony must have been in the mind of the trial court at the time it ruled on such motion. AVe therefore, do not feel that this court should disturb the ruling of the trial court upon such motion. Atkinson v. Saltsman, 3 Ind. App. 139, 29 N. E. 435.
Dissenting Opinion
(dissenting). I dissent from the views expressed by the majority of the -court in affirming the judgment of the court below and order denying a new trial, for the reason that the trial court clearly abused its discretion in denying the defendant’s motion for a new trial upon the ground of newly discovered evidence It clearly appears from the affidavit of the defendant that subsequently to his trial one Robert George and one Willie A. ■ Adams were tried for the same offense, and on their trial for the first time admitted that they had committed the larceny alleged in the information, and for which the defendant was tried, and that subsequently to their trial they both stated to the defendant that they could and would swear that the defendant was not guilty of any crime in connection with the said larceny; that prior to the trial of this defendant the said George and Adams denied that they were guilty of the larceny alleged in the information, and refused, on the request of the defendant, to -give any evidence in regard to his connection therewith, but that since their said trial, they are willing to testify, which is true, that this defendant had no connection with, or knew of, the larceny committed by them. The said Robert. George, and said Willie A. Adams made affidavits that they had read the affidavit of the defendant, and knew the contents thereof, and that the same was true, and that they alone committed said larceny on November 23, 1907, and that this -defendant "knew nothing of its commission, nor how it was committed, nor when it was committed, neither did he aid or abet, or assist in any manner in its commission;” .that they would give evidence to the above facts, if a new trial should be granted; that up to the time of their trial both had, to all persons, denied that they were guilty, and denied same to said defendant, who had asked them to tell the truth so he could use their evidence om the trial. In my judgment the facts stated by the defendant in hi’s affidavit supported and corroborated by the affidavit of George and Adams made such a showing as entitled the defendant to a new trial, especially in a case where it is stated in the abstract that there
