14 S.D. 161 | S.D. | 1900
The sufficiency of the information upon which plaintiff in error was tried and found guilty of murder as charged, was challenged below by a demurrer which the court overruled, and the point comes to us for review. The complaint made by Ezra Adams, the duly elected, qualified, and acting state’s attorney, is “that Thomas Hall, late of said county, at and in the county of Hamlin in the State of South Dakota, on the 20th day of September, A. D. 1897, unlawfully, feloniously, without authority of law, and with a premeditated design to effect the death of Charles LeMay, the person killed, did him, the said Charles Le-May, kill and murder; that the said Thomas Hall, on the said 20th day of September, A. D. 1897, at and on the north banks of Lake Poinsett, and at and in the county of Plamlin and State of South Dakota, with force and arms, did unlawfullly, feloniously, without authority of law, and with a premeditated design to effect the death of Charles LeMay, with a firearm, to-wit, a revolver, 'then and there charged and loaded with gunpowder and leaden ball, and then and there held in his, the said Thomas Hall’s, hand, unlawfully, feloniously, without authority of law, and with a premeditated design to
The particular objection to be considered is that two dissimilar acts by which the offense was committed are alleged conjunctively in a single count, namely, by shooting with a revolver, and by blows inflicted with a heavy instrument. Section 7244 of the compiled laws provides that, “when the offense may be committed b)' the use of different means, the means may be alleged in the alternative in the same count,” and counsel for the accused maintain that the expression “may be alleged in the alternative” is a mandatory requirement, rendering the information before us of no validity. Where the death dealing means resorted to are of different species, “the particular circumstances of the offense,” stated positively, as in this instance, “enable a person of common understanding to know what is meant,” and is a more “direct and certain” method than the alternative. -In view of the statutory rules from which the foregoing phrases are quoted, and by which the sufficiency of all pleading in criminal procedure must be determined, we are disposed to conclude that the word “may” is used in its ordinary permissive sense, and not to signify the mandatory precept usually imported by the term “must.” The body of the deceased, when found and identified, furnished conclusive evidence of a homicide effected by shooting with a revolver and by striking with a heavy instrument, co-operatively. While either of the means employed might alone produce instantaneous death, the exact influence of each upon the vital functions of the victim could not, under the circumstances of this case, be actually demonstrated. However, an allegation that death was produced by the bullet in the
Recently, in sustaining an information charging in a single count the murder of a seaman by shooting and drowning, the United States supreme court, speaking through Mr. Chief Justice Fui.lpr, says: “The government was not required to make the charge in the alternative in separate counts. The mate was shot and his body immediately thrown overboard, and there was no doubt that, if not then dead, the sea completed what the pistol had begun.” Anderson v. U. S., 18 Sup. Ct. 689, 42 L. Ed. 1116. So, in Com. v. Desmarteau, 16 Gray. 1, where it was alleged in one count that the murder was caused by both blows and drowning, the charge was held not objectionable, and, moreover, that proof of death resulting from both or either of such means would sustain a conviction. See, also, to the same effect, Com. v. Macloon, 101 Mass. 1; State v. O’Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555; Joy v. State, 14 Ind. 139; People v. Cosey, 72 N. Y. 392; Heath v. State (Ga.) 16 S. E. 657; Thomas v. State (Tex. Cr. App.) 26 S. W. 724; People v. Colt, 3 Hill, 432.
The prosecution relied wholly upon circumstantial evidence, of which the following letter is the most probative, and without which a conviction would be doubtful: “Brookings, S. D., July 13, 1898. Mr. W. W. Jones — My Dear Friend: I will drop you a few lines to let you know that I am well and hope you are the same. Well Wake, I have a chance to slip a letter out to you now by my lawyer. Say, Wake, I want you to change the date from October 4th to September 20th, 1897. You know what I mean. It don’t make no difference what you told old Horswell about it; you was not under oath then. Will you please do this for me ? I can beat my case easy
Plaintiff in error having, on the 4th day of October, 1897, returned from this state to Tarkio, Mo., his former place of residence, was placed under arrest on the same day, while a guest of the witness Jones, who at the time kept a hotel. The letter, if genuine, is conclusive upon the point that the accused attempted to manufacture perjured testimony by which to show that he was, at the time alleged in the information, in a different state from that in which the crime was committed, and thus lay the foundtion for the irresistible inference of innocence. It being conceded at the trial that the purported writer of this letter was at the home of the witness in Missouri on the 4th day of October, any such attempt at subordination of perjury adds force to the evidence of witnesses testifying as to his presence in this state about the 20th of September, and discredits his denial of that fact upon the witness stand. Consequently the contention
All that can rightfully be claimed for this testimony is that the letter, with the name of the accused attached, was received by the witness at Tarkio, Mo., in the regular course1 of mail, and because the name is attached to such letter the witness concludes that it came from Tom Hall. In order to enable a person to give competent preliminary testimony in relation to the handwriting of one whose purported letter is sought to be introduced in evidence, it must be shown in some manner, pointed out by the law, that the witness is familiar