227 N.W. 463 | S.D. | 1929
Defendant was convicted of arson in the first degree and appeals to this court from a judgment sentencing him to imprisonment in, the penitentiary for a term of 15 years and from an order overruling- a new trial.
The errors assigned will be best understood if the facts are stated in chronological order with the background surrounding the case. The scene of the alleged crime is in the ranch country of .Eastern Butte county. Defendant and most of the witnesses for the state are ranchmen. At the time of the alleged offense defendant owned about 5,000 acres of land on which were situated two sets of ranch -buildings, one- set was known as the Sulphur ranch buildings and the other as the Trail 'Creek ranch buildings. On the morning of the 26th of May, 1923, about 2 o’clock a. m., the dwelling house on the Trail Creek ranch was burned together with the contents of the building, except a few small articles of furniture which were removed by those present. At the time of the fire the house was occupied by four men, namely, Earl Kirk, Paul Smith, Orion Mutchler, and Ed Maguire. Kirk and Maguire were emploj'ees of defendant, working at what the}' termed lamh-ing'-out. Smith was employed, as cook. Mutchler’s purpose in
In January, 1925, nearly two years after the fire, defendant’s wife obtained a divorce, and most of the witnesses for the state in this case were witnesses against the defendant in the divorce case. It is quite evident from the record that the principal witnesses for the state took sides against the defendant in the divorce action and that they are hostile to defendant. The principal witnesses frankly admit their hostility and their desire to convict defendant in this case. It appears that before the trial there had been at least two fires, one in which eight saddles used in the round-up conducted 'by the defendant were burned, and the horses used by the riders scattered. Another was the burning of a haystack belonging to one Leslie Boe. The hostile state’s witnesses ascribe their hostility to defendant to a belief on their part that he 'was a dangerous man and by implication at least seem to suspect defendant of being connected1 with the fires. It would hardly seem, however, that there could be any justification in connecting- him with the burning of the saddles. After the divorce action and the apparent feud between Mutchler and some of the other principal witnesses for the state and about two years after the fire, Mut-chler says 'that he concluded he ought to turn state’s evidence, and as far as we can gather from the record, although the actual
During the cross-examination of appellant and after he had testified that he considered the building worth $3,500 and that he lost money by the fire, he was shown certain tax lists or schedules of property used by the asséssor in the assessment of property and questioned concerning the values therein shown. One of these lists was for the year 1916 and was excluded. Another was for the year 1922, but for some defect that was also excluded. A third was for the year 1921 and showed the value of the building at $300. -This exhibit was admitted in evidence over the proper objection, and its admission is assigned as error.
We do not deem it necessary to consider all of the errors, alleged, as we are convinced that the admission of this tax list or assessor’s schedule w^s error. Our statute, §§ 6708, 6709, requires the owner of property to list his porperty with the assessor under oath; the values to be fixed are required to be made by the assessor. Appellant denied fixing the value himself and stated that he did not think he had been asked' what the property was worth. The
Was the error prejudicial? In view of the seriousness of the charge and the grave consequences to appellant, coupled with the fact that there is so little evidence corroborating the accomplices connecting him with the crime and almost none corroborating the accomplices as to the corpus delicti, we cannot say that the admission of the list was not prejudicial. The value in the assessor’s list was so much less than the amount for which the building was insured, and the motive so important as a circumstance to establish guilt, that it might well be the determining factor in the decision of the jury. While the mere fact that a man has a motive for a fire and that he did benefit by the burning of a building- does not prove that he did in fact burn it, it does in the face of the accomplices’ testimony tend in some degree to connect the appellant with the burning of the building if the jury are convinced that the burning was in fact incendiary. Our Code, § 4882, requires the testimon)- of an accomplice to be corroborated. We do not hold there is no other corroboration, but it .is meager.
This court is divided on the merits of the assignment, covering the denial of a change of venue. As it is not likely the showing will be identical if a change is asked on a retrial, we will not review the showing in detail. Appellant is entitled to a fair trial. An excited state of public feeling is always the most unfavorable for an investigation of the truth. Not only should the minds of the jurors be without bias and prejudice, but they should be removed from the bias and prejudice of others. State v. Meservey (S. D.) 220 N. W. 139; State v. Perkins, 36 S. D. 579, 156 N. W. 73. With these cautionary remarks we leave the matter of a change of venue in this case, if it shall again arise, to the sound judicial discretion of the trial judge subject to review by this court if such discretion is abused.
We do not 'deem it necessary to consider other errors assigned, but for the error in admitting the assessor’s list the case must be reversed.
The judgment and order appealed from are therefore reversed.