24 S.D. 639 | S.D. | 1910
Information was filed charging defendant with having committed the crime of grand larceny in having stolen a number of cattle belonging to Coppersmith, Reid & Comer, in Charles Mix county. Trial was had and verdict rendered finding defendant guilty. ’ Motion for new trial was overruled, and defendant appeals, assigning various errors. ■
It appears from the record that before the trial was begun, on June 12, 1908, defendant made and filed affidavit that he believed he could not have a fair and impartial .trial before the presiding judge, Hon. E. G. Smith, before whom said trial was about to take place. One June 17 following no order transferring the cause to some other circuit judge having been made,
The .rule seems to be well established that any disqualification of a judge which is not forbidden by some rule of public policy, and which exists only for the benefit of. the party as a privilege, may be waived. The doctrine of waiver as applied to criminal procedure seems to be that “If, except when some counter doctrine presses with superior force forbidding, a party has requested or consented to any step- taken in the proceedings, or if at the -time for him to object thereto- he did not, he -cannot afterwards complain of it, however -contrary it was to -his constitutional, ¡statutory, or common-law rights. Necessity is -the chief foundation of this doctrine. Without it a cause would rarely be kept-from miscarrying.” Bishop, Crim. Pr. §§ 118, 119. But, whatever may be the doctrine of other jurisdictions, whether based on statutes or the common law, we are of the opinion that section 2412, Civ. Code, establishes the rule in this state, which provides that any one may waive the ■advantage of a law intended solely for his benefit; but a law established for a public reason cannot be contravened by a private agreement. The statute of this state (section 292, Code Cr. Proc.) permitting a defendant to make and file, affidavit of prejudice against the trial judge seems to us to be a statute solely for the benefit of defendant, and in no- manner contravenes
Appellant also urges -that the evidence is insufficient to justify the verdict and that the court should have fundamentally instructed the jury, without request therefor, as to certain witnesses for the state being accomplices, and as to the corroboration of the testimony of such witnesses, but we are of the opinion that the evidence was sufficient to sustain the verdict, and that the trial court was not required to give such instructions to the jury of his own motion, in the absence of a request therefor.
Finding no error in the. record, the judgment and order denying a new trial are affirmed.