State v. Devers

143 N.W. 364 | S.D. | 1913

WHITIN'G, P. J.

The defendant and appellant was convicted of-a violation of section 2945, Pol. Code, which provides: “It shall be unlawful for any person or persons who occasionally slaughter cattle for beef to offer for sale said beef without exhibiting the hide or hides of such beef at the time and place said beef is offered for sale.” From the judgment of conviction and an order denying a new trial, he has appealed. Appellant has assigned numerous errors which present but a few separate questions.

[1] Appellant complains of certain rulings of the court admitting testimony. While the record presented to this court sets forth the questions and answers complained of, yet, omitting three or four questions, it .does’ not appear that any exceptions were taken to the rulings of the court thereon.

[2] Furthermore, the only objection that appears to have been made to any one of said questions was a general objection to the effect that the question was either incompetent or immaterial. Such an objection in no manner calls the court’s attention to the precise reason why a question -or an answer called for thereby was or would be incompetent or -immaterial. Under the established rule prevailing in this state, such an objection is‘ wholly insufficient upon which to basé either a specification or assignment of error. McQueen v. Bank of Edgemont, 20 S. D. 378, 107 N. W. 208.

Appellant contends that the evidence was wholly insufficient to support the verdict, but he has failed to comply witih rule 6 of this court (140 N. W. viii) providing: “That, whenever the appellant shall seek to rely upon an assignment to the effect that the evidence was insufficient to support the verdict, finding, or other decision, he shall cause it to affirmatively appear thait the * * * statement in his brief contains a statement of all the material evidence received upon the -trial,” which requirement is by rule 9 (140 N. W. ix) made to apply to criminal causes. Furthermore the record as presented discloses ample evidence to sustain the verdict rendered unless appellant is correct in his contention that it was necessary, under the information filed, for the state to prove that the beef sold was from cattle killed by the appellant in Pennington county, S. D.; whether or not there was evidence showing that any of the cattle were killed in Pennington comity the record does not disclose.

[3] A reading of the statute quoted reveals the fact that the gist of the offense is the selling of the beef without exhibiting the hide or hides. The statements in said statute, relating to the killing of the animal, are only for the purposes of limiting the commission of this offense to such persons as “occasionally slaughter cattle for beef.” Under this statute it is absolutely immaterial where the cattle were killed; the material thing being that the person by whom the beef was offered for ‘■'ale be the person who slaughtered the same and a person who occasionally slaughters cattle for beef.

[4] It appears, however, that the information filed herein charged that on and between certain dates “at the county of Pennington and state of South Dakota” the defendant did “slaughter cattle for beef and for the purpose of selling said beef and did, at said time or times and at said place, wrongfully and unlawfully offer said beef for sale without exhibiting the hide -or hides of such beef at the time and place he offered the same for sale.” The information, it will be seen, alleged the venue not only of the unlawful sale but the venue where it was charg-ed the cattle were killed. It is the contention of the apellant that, inasmuch as the information charged that the cattle were slaughtered in Pennington couihy, the verdict could not be sustained unless the proof showed that the slaughtering was done in that county. It does not appear that any objection was raised to the admission of evidence tending to show the killing of cattle by appellant outside of Pennington county; neither was there any request to the court that it should advise the jury to bring in a verdict owing to the failure of evidence to establish the slaughtering in Pennington county; nor was there any request made to the court that it instruct the jury to acquit the defendant unless it was found that the cattle were slaughtered in Pennington county. The court instructed the jury that if “you are satisfied the defendant occasionally slaughtered beef, and that he offered that beef for sale in the county of Pennington, * * . * that he offered it for sale without exhibiting the hides, then it is your dutv to find the defendant guilty as charged in the information.” The appellant excepted to the instruction for the reason that “it relieved the jury from finding that cattle were occasionally slaughtered in Pennington county as charged in the information.” It is unnecessary at this time for us to express any opinion -as to what the situation would have been if the appellant, upon the trial, had objected to any proof of the slaughtering of cattle elsewhere than in Pennington county, or if he had requested and had been denied an instruction requiring the jury, before they could convict, to find, as alleged in the information, that the slaughtering was done in Pennington county. Inasmuch as under the statute the place where the slaughtering was done is immaterial and therefore any allegation in relation thereto unnnecessary in the information, and inasmuch as the appellant raised no objection to the evidence showing the killing of cattle in another county, and inasmuch as appellant asked for no instruction requiring, before they could find a verdict of guilty, that the jury find that appellant killed the cattle in Pennington county, and further inasmuch as the record herein fails to show that there was not ample undisputed evidence showing that .the appellant did “occasionally slaughter cattle in Pennington county,” the contention of appellant cannot be sustained.

[5] Appellant complains of certain instructions given by the court wherein, as in the instruction quoted above, the court called attention to facts which, if found, would sustain a verdict of guilty but wherein the court did not caution the jury that it must be satisfied, beyond a reasonable doubt, as to the existence of such facts before it would be warranted in rendering a verdict of guilty. Appellant’s brief does not purport to present to us all the instructions given to the jury, but it does appear that there was an instruction upon the rule of reasonable doubt. There being nothing to the contrary appearing, it must be presumed, upon appeal, that the trial court made it perfectly clear to the jury that its instructions upon the rule of reasonable doubt applied to every fact necessary to be found in order to authorize a verdict of guilty, Instructions are to be construed as a whole. State v. Brennan, 2 S. D. 384, 50 N. W. 625; McBride v. Wallace, 17 N. D. 495, 117 N. W. 857.

[6] Appellant contends that there was misconduct on the part of the jury such as would necessitate the setting aside of the verdict herein. It appears that, at some stage during the trial when a recess was taken and while the jury were apparently disbanded, a party approached one of the jurymen and, in the course of conversation with him, advised such juryman “that he was the party whose cattle those fellows killed.” It further appears that the juryman immediately advised him that he was a juryman, and such party made no further reference to the case. This incident was immediately communicated to counsel for the defendant, who failed to call the court’s attention to same until after the verdict. There is absolutely nothing in this record to show but what the fact that was communicated to this juryman was, either before or after this incident, revealed to the whole jury by the sworn testimony of witnesses. In other words, there is absolutely nothing that would reveal to this court that there was anything brought to the notice of this .juryman that was not brought, in a proper manner, to the notice of the whole jury. The record, therefore, fails to show any facts from which we would have a right to infer or presume that the appellant was in any manner prejudiced by the incident referred to.

[7] Appellant contends that the statute (section 2945, supra) is unconstitutional for the reason that it was enacted as a part of chapter 112 of the Session Laws of 1891, and, as appellant contends, the title of such chapter did not express or give notice of the subject-matter contained therein. It is unnecessary for us to consider this contention for the reason that, upon the adoption of the Revised Codes in the year 1903, the Legislature adopted this section as a part thereof, and the appellant has in no manner questioned the sufficiency of the title to the Political 'Code, wherein it is found, nor the sufficiency of any of the subtitles of such Code under which such section is found. As a matter of fact, the title to such Code is amply sufficient to authorize the enactment thereunder of the section in question. Wilson v. Western Surety Co., 31 S. D. 175, 140 N. W. 263.

The judgment and order appealed from are affirmed.

GATES, J., takes no part in this decision.