21 S.D. 598 | S.D. | 1908
Upon an information duly filed by the state’s attorney of Charles Mix county the defendant was tried and convicted of .the crime of grand larceny. The information, omitting the preliminary allegations, is as follows: “That John Ham, late of said county, Yeoman, on the eleventh day of August, in the year of our Lord one thotisand nine hundred and six, at the county of Charles Mix, and state of South Dakota aforesaid, did willfully and unlawfully and feloniously, and by means of fraud and stealth, and with the intent to deprive another thereof, take, steal, and carry away certain personal property; to wit, twenty-two head of cattle, the same being neat, and which cattle were then and there all steers two' and three years old, and which cattle were then and there of the value of seven hundred dollars, and were then and there owned by and in possession of C. F. Coppersmith and C. Reid, copartners as Coppersmith & Reid, and not the property of the said John Ham, with intent then and there to deprive the said Coppersmith & Reid thereof, and did thereby commit the crime of grand larceny, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of South Dakota.” On the trial it was disclosed by the evidence of Charlton Reid that one Louis Comer was also interested in the partnership, and was a part owner of the property alleged to have been stolen. Upon this fact appearing by the evidence' of Reid, the plaintiff in error, who will hereinafter be designated the defendant, moved to strike out the evidence pertaining to the ownership and possession of this property, on the ground that the proof of ownership was at variance with the allegation in the information. The motion was by the court overruled, and the defendant excepted.
It will also be observed that the steers are not described by marks or brands upon them, or by any other signs by which they could be selected from any herd of live stock. It is quite clear, therefore, that there is no such description of the property “in
■ It will be observed in the case from which we have last quoted that the case of People v. Hughes, supra, is apparently cited with approval. The , case of People v. Smith, 112 Cal. 333, 44 Pac.
It is further contended by the learned Attorney General that the court iñ its instructions to the jury charged them that “the ownership of these cattle is alleged to be in Coppersmith & Reid or Reid & Coppersmith. The evidence shows that another person was interested in that partnership, and was a part owner of the property which is in question here. That variance as the court has ruled in this case is not material, and is of no. consequence so long as the evidence discloses the real ownership of the property;” and as no exception to the charge was taken- by the defendant, it is now toe late to raise that question, in this court, but we are of the opinion that there is no> merit in this contention. If the court erred in overruling the defendant’s motion to strike out the evidence on the trial, the fact that the court in its charge to the jury affirms its ruling on the trial, though not excepted to>, does not cure its error in overruling the motion. When one has property once excepted to the ruling of a court, he is not reqired to repeat that exception in order to avail himself of the error committed in the first ruling, except in ¡a case where incompetent evidence has been admitted under objection and exception, and subsequently practically the same evidence is admitted on the trial without objection.
Our attention is further called by the Attorney General to section 500 of our Revised Code of Criminal Procedure, which he claims requires this court to disregard -technical errors or defacts which do not affect the substantial rights of the parties That section reads as follows: “After hearing the writ, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of tire parties.” In the case at bar, however, we are of the opinion that the error complained of and to which exception was taken does not affect the substantial rights of the defendant. Should the defendant be again charged in 'an' information with the larceny of 22 steers, the property of the three persons shown to be the owners of the live stock in this case, he could not plead his conviction in the present case at .bar to the new information, for
It is contended by the Attorney General that under the law as held in the case of State v. Vincent, 16 S. D. 62, 91 N. W. 347, the judgment in the case at bar should be affirmed, but this contention is untenable. As will be observed in that case this court held that the ownership of the property might be laid in the agent, who had the possession, charge, and control of the property, instead of the real owner of the same; but in that case the name of the agent was correctly stated, and hence there was no variance between the allegation of the information as to the ownership and the proof on the trial. In the case at bar, however, there is a variance between the ownership as alleged in the information and the ownership as proven on the trial. In the former case the record of a former conviction or acquittal would constitute a bar to a new information or indictment, while in the case at bar the rec
In the view we have taken of the first assignment of error, which necessarily disposes of the case, it will not be necessary to consider or discuss the other errors assigned.
The judgment of the court below, and order denying a new trial; are reversed.