23 S.D. 596 | S.D. | 1909
tj'pbn’the 'issues’'raised'by‘an,’information charging' murder 'arid:'a' plea of-not'guiltyj the jury in this action returned á'verdict'fiti&irig t'fie defendant'guilty,as charged, fixing'liis punishment at deatii. íhe testimony'of the state tended to "prove that Lena'Scharr and Ered Sam'üelsoh, who worked for the’former’s father,1 were in a corral; that Miss 'Scharr was'near Saniuelson, wáitiñg "for him to'finish 'milking, 'when' 'the accused" cá’me ’across the fence saying, “t am tired of this,” and’,'shot immediately; &at Miss Scharr ran to the corral gate followed, by Samuelso’nj that
A challenge to the regular panel having been interposed by the accused and allowed, the court ordered the sheriff to “summon forthwith from the body of tfie county * * * 24 citizens possessing the qualifications of jurors ‡ ‡ ‡ to serve as petit jurors for “the pending term, to which order no objection was made or exception taken by the accused.. The sheriff having complied with such order, and the jurors thus summoned having .appeared, the accused challenged the special panel upon the following grounds: (1) The court was not authorized to majce the aforesaid order. 3(2) The sheriff was not qualified'to execute such order (a) fiecause he was named as a witness on the information; (b) because he had formed and expressed an unqualified opinion as to the merits of the controversy; (c) because he had been engaged for weeks in the pursuit and capture of fhe accused; (d) fiecause he had talked with material witnesses named on. the information; (e) because he had gathered and retained various objecfs of a material nature which the statute intended to introduce in evidence; (f) because he had assisted the state’s attorney in examining the accused while in custody as to maferial facfs; and i§) because he had by other acts and conduct disqualified himself from selecting the special panel. (3) The panel summoned pursuant to such order did not
•' The 'argument of counsel is to this" "effect: ‘ (i) ■ Tile "method of selecting this" special panel is nót' authorized' by the-'statute'; ór (2), if it is, the statute is unconstitutional; and (3), conceding the'method tp'be authorized and'constitutional/the person directed tó 'sümmon' the- panel was "disqualified. - “The ■ jurors duly' drawn and summoned for the trial of civil 'actions are’ also the jurors for the trial'of criminal actions;” Rev. Code Cr. Proc. § 302. ' “Trial jüries forcriniinal actions may also be'formed in the same’manner as trials juries in civil actions.” ■ Id. § 303. When a challenge to thd regular-panel'is allowed; “the cdurt must discharge the jury, and another .jury can be summoned for the sanie term forthwith from the body of the county or subdivision; or the judge may prder a jury to be drawn and summoned in' the regular' mannér.” I'd. 328. It is therefore clear- that the method pursued by the learned circuit court was expressly authorized by 'the statute." It is equally clear that the statute does not conflict with the right “to a speedy public trial by an impartial jury of the county or district in which' the offense is ’alleged' to -have been committed.” Const. S." D. art. 6, §-7. The right to an impartial jury is not new. ■ It did npt originate with the Constitution. :-Impartiality' was an "essential attribute or element of trial by jury as defined by 'the common law. Lommen v. Minn. Gaslight Co., 65 Minn. 196, 68 N. W. 53,
The special panel having been exhausted, fffe sheriff was ordered to summon a second, to which order no objection or exception was interposed. Upon the return of the second special p.apel, it was challenged by the accused upon the same gnoup(js as tlqe first, and the -court disallowes the challenge, declining tq perniit the accused to again examine the sheriff. The refusal to allow a reexamination of the sheriff was not reversible error when the accused did not object to the order designating the sheriff as the officer to summon the second special panel, and when the accused made no offer of proof different from that introduced in support of the previous challenge.
The contention that the court erred in refusipg to give certain instructions requested by the accused is not tenable. The rule is everywhere recognized, and has been often followed by this court, that it is not reversible error to refuse requested instructions if the substance of such instructions is covered by the charge as given by the court on i,ts own motion, as was thp case in this instance. The jury was instructed that they might und,er the Information find the accused guilty of murder, manslaughter in jfje first degree,
Finally, it is contended that the verdict is not definite and. certain as to the offense of which the accused was convicted. Considering the language of the verdict in connection with tfie information and charge of the court, there is no room for doubt as to the intention of the jury. The information hcarged tfie chime of murder. The learned circuit court instructed the jury: “If, after considering all of the evidence in the case, you are satisfied beyond a reasonable doubt that the defendant shot .the deceased, Fred Samuelson, and that the shooting was within the jurisdiction of this court — that is, within this county and state — and that it was done of the malice aforethought and with the premeditated design to effect the death of the deceased with intent to kill him, without authority of law and without justifiable or excusable cause, he would be guilty of murder as charged in the information and you should so find by your verdict, and, if you find the defendant guilty of murder as charged in .the information, -the duty would rest with you to fix the punishment, and, if you find the defendant guijty of murder beyond 'a reasonable doubt, you would have a right to fix the punishment at death or imprisonment in the state penitentiary for the balance of his natural life. If, after considering all of the evidence in the case, you entertain a reasonable doubt as to the guilt of the defendant as to the crime of murder, it would be your duty to acquit him as to that charge, and further determine whether he is guilty of manslaughter, and, if, after considering all of the evidence in the case; you should determine that the defendant was guilty of manslaughter in either the first or second degree under the evidence and the law as given to you by the court, you would so find by your verdict, and your judgment would be: ‘We, the jury in the above entitled action, find the defendant guilty of man
'The judgment o'f the circuit court is'affirrfied.