*1 Dakota, of South Plaintiff STATE Respondent, GERDES, Appellant.
Reid Defendant
No. 11963.
Supreme Court of Dakota. South April
Argued 1977.
Decided Oct.
Rehearing Denied Dec. 1977. *2 Guhin, Gen., Pierre,
John Atty. P. Asst. plaintiff respondent; for and William J. Gen., Janklow, Pierre, Atty. on the brief. Sanford, W. of Braithwaite Steven & Cadwell, Falls, ap- for defendant and Sioux pellant.
MORGAN, Justice. tape
As the result of a sale of a stolen defendant he player by the was arrested counts, first, charged and on two third- degree burglary and the [SDCL 22-32-9] second, grand larceny 2], 22-37-1 & [SDCL alleged to have been committed in the course of a break-in shop. at a radio pleaded guilty defendant to both counts. The returned a verdict of burglary charge but con- grand victed on the larceny charge. De- alleging fendant moved for a new trial in- evidence, sufficiency of the legal inconsist- verdicts, ency of the evidence in the form of an affidavit exe- brother, cuted his confess- ing that he alone had committed the of- motions, fense. The trial court denied the defendant, sentenced the appeal this resulted. reverse. Repair
Drive-In Radio and Modem Dis- (hereinafter Radio) tributors Drive-In is a Falls, small retail business located in Sioux approximately South Dakota. At 4:30 in morning on December Sioux police Falls were dispatched to Drive-In they where Radio observed a door standing open with its lower pane glass broken out. items were reported missing. Several Reiter, days Tony Three later a local high student, brought tape player school into Drive-In Radio to have it installed his recognized tape car. It was as one of the players missing that was from the Decem- police ber 27 break-in. Reiter informed the and later testified at the trial that he had purchased the item from the defendant parking Sports lot of the Bowl situated Falls, in Sioux Dakota. At South the time delivery the defendant had assured Reit- er that the merchandise had not been stolen and that he could have it anyplace installed in town. Each count in an indictment is Paul, proprie- regarded wife of the as Terry
Mrs.
Radio,
separate
the defend-
it was a
indictment.”2
identified
if
The rule
of Drive-In
tor
youths
four
she
in Dunn was
prop
as one of three or
stated
two
ant
day
be-
browsing
being
judicata,
in the store
The first
res
observed
ositions.
they
testified that
theory
lenity.
the break-in. She
fore
The theo
light-colored
in a
departed
ry
lenity
had arrived
evolved from the case of Steck
*3
U.S.,
59,
(2
1925)
van.
ler v.
F.2d
60
7
Cir.
which
stated:
took the stand on his own
The defendant
“The most that can be said in such cases
any participation in the
and denied
behalf
is that
the verdict shows that either in
he
been at
He testified that
had
break-in.
acquittal
the
or the conviction the jury
the afternoon Mrs. Paul testi-
a local tavern
conclusions,
speak
did not
their real
but
He
that he was at Drive-In Radio.
fied
that does
they
not show that
were not
that he had loaned his
further
testified
convinced of the
guilt.
defendant’s
We
night of the
Kevin his van the
brother
interpret
acquittal
the
as no more than
spent
evening
the
burglary while he himself
their assumption
power
they
of a
which
morning
up
hours
until 5:30 a.m. bar
exercise,
right
had no
to
but
to which
admitted that he did
hopping. Defendant
they
through
were disposed
lenity.”
to Reiter but recalled
tape player
sell the
he
about the incident because
claimed
little
theory
lenity
paraphrased
The
of
can be
in
intoxicated at the time. He
to have been
juries
power,
that
the
have the
if not the
tape player
the
knowing that
denied
right,
irrationally.
to act
The Dunn case
testify that his brother
but did
been stolen
expressly
by
followed
this court
the
subsequent
to him
to
Kevin had stated
100,
(1947) 72
State v. Sinnott
S.D.
30
gotten
tape player
the
sale that he had
455,
affirming
N.W.2d
defendant’s con-
Drive-In Radio.
from
charging
viction on a count
to
conspiracy
employees,
conceding
intimidate
while
that
Kevin was called to the
the brother
When
the conviction was inconsistent with a ver-
he invoked the Fifth Amendment
stand
charging
dict of
on another count
in re-
against self-incrimination
privilege
conspiracy
battery
to commit assault and
on
Drive-
any questions involving
to
the
sponse
the
employees.
parallels
same
the
Sinnott
evening
Sports
or the
at the
Bowl.
In Radio
present case where both counts were based
the
of
jury
After the
returned
verdict
transaction, occurring
on the same factual
for a
conviction defendant
filed motions
the
time
place,
same
and that
the
trial,
grounds previously noted.
new
required
evidence
to establish the one of-
has neither briefed
The defendant
substantially
fense was not
different from
sufficiency of
argued
question
the
nor
the
required
that
to establish
other. Com-
evidence and that
issue is therefore
the
menting that
the authorities were in irrec-
deemed abandoned.
conflict as to the effect of incon-
oncilable
proposition
sistency
first with the
in criminal verdicts on informa-
We deal
counts,
charging
new
two or more
the
the defendant was entitled to a
tions
Sin-
verdicts.
nott
held the evidence sufficient
because of the inconsistent
Court
trial
rule,
major
support
considered the
the count as to which defendant
general
The
rule,
that inconsistent verdicts do not
had been convicted and said
under such
ity
inquire
it would not
into the
a basis for reversal.1
landmark
circumstances
provide
390,
(1932)
acquit
prompted
Dunn v.
284
52 motives which
case of
U.S.
U.S.
189,
356, set out the federal
him on the other count. We therefore hold
76 L.Ed.
S.Ct.
denying
the trial court did not err in
majority
opinion
rule in an
rule and
holding:
grounds
motion on the
by Mr. Justice Holmes
the defendant’s
written
necessary.
inconsistency
is not
of the verdict.
“Consistency in the verdict
Dunn,
authority
supra,
at A.L.R.3rd 259.
358-359.
1. See
cited
18
ruling
court’s
(1901),
next turn to the trial
S.D.
The
or
of a new motion on the
that
it
newly
basis
was not
upon
ground
newly
trial
the
“discovered” evidence since the defendant
largely
evidence is
in the discretion of the
had previously testified to his brother’s ad-
court,
mission,
trial
and unless there has been
merely
a
but was
newly “available”
evidence,
manifest
of such
who,
abuse
discretion this Court
since the witness
when
trial,
will not review the action of the trial
testify
court
called to
at the
had invoked
upon
Seaman,
such motion.
Wilson v.
the Fifth
privilege against
See
Amendment
respect
had not waived this
With
self-incrimination and
to
credibility of
until
trial. The trial
privilege
affidavit,
after
the proffered
the defendant was
newly
went
available
court
on to hold
convicted on circumstantial evidence. His
is
for new trial.
grounds
evidence
not a
First,
defense was twofold.
he offered an
for himself
alibi
and then testified that
it
we
With this distinction
are un
was not he but his brother Kevin who had
true
agree.
general
While it is
able
committed the break-in. Kevin has now
trial, in
evidence obtained after
order to
ly
signed a
he,
statement under oath that
discovered,
have been
must
un
fact,
alone,
committed the break-in
unaided,
to the
and unavailable
accused him
known
trial,3
so far
any
a new
as he knew without
at the time of
trial on
knowl
self
edge
solemn
grounds
part
anyone
rests in the
discretion
these
else. The trial
court,
depends largely
the trial
on
court
ruling apparently
its
agree
did not
credibility of the new evidence.4 The
with the state’s contention that
it was
judge-made
purpose
is a
rule
its
is
rule
cumulative,
merely
we agree.
It
bring a
finality
litigation.5
touch
clearly distinguishable from another wit
are
appear
govern
stones
two:
coming
relating
ness
in and
what Kevin had
being
showing
diligence
as an
first
told him inas
the Gries affidavit previously
having
present
for not
able to
excuse
been
discussed.
has
Anyone who
watched a Per
trial;6
evidence at the
and the
first
ry
appreciate
Mason show can
the effect on
being evidence that will convince the
second
if the witness himself testifies that
of facts that
verdict will
trier
a different
performed
he had
alone
deed
and unaid
*5
therefore,
result.7 We hold
probably
as
ed.
If
testimony
Kevin’s
is as strong as
Supreme
Taylor
did in
Court of Tennessee
indicated, it
reasonably
expected
could
be
State,
62,
180
v.
Tenn.
171 S.W.2d
change the result of a new trial.
although
newly discovered evi
not
hold, therefore,
that at the hearing
term,
in the
of the
its
dence
usual sense
upon
motion for new trial
the evi-
discovered,
availability
newly
to which
Kevin,
dence of
the trial court should have
same
This Court was
principle applies.
proposed
examined the
witness under
analogous
prop-
with a somewhat
situ
presented
v.
er
Tappe,
safeguards, again
in the case of
53 S.D.
constitutional
ation
State
deter-
22,
when
(1928)
rective
letter.
concurs.
Collier,
People
Laper, supra
861,
Cal.App.2d
v.
5. State v.
113
at 479.
3.
249
Weise,
72,
(1952);
State v.
P.2d
78
75 Idaho
404,
97,
(1954).
Mitchell,
272,
273 P.2d
100
6. State v.
192
46 S.D.
N.W. 487
supra.
Laper,
(1923);
State v.
Dickerson,
People
Cal.App.2d
v.
Friedman,
(1955);
Johnson,
State
P.2d
supra;
Dowling,
7. State v.
State v.
(1949).
N.J.Super.
supra.
mitted the successful of the I am authorized to state that Justice Shop. Drive-In Radio The court should joins PORTER in this dissent. given have an instruction which would have it
properly apprised if found guilty burglary,
the defendant was not it
must, likewise, acquit grand larceny. him of
DUNN, (dissenting). Chief Justice
I would affirm.