166 N.W. 424 | S.D. | 1918
One John Hayes was convicted in the circuit court of Stanley county upon -an information under section 587, Penal Code, charging the crime of forgery in the second degree. A motion in arreslt of judgment was sustained by the .trial court. Upon appeal to this court the order of the trial court was reversed. That decision is reported in 37 S. D. 530 159 N. W. 108. After the filing of the remittitur and before any judgment had been entered, appellant filled a motion for a new trial based upon some 40 specifications of error, 30 of which relate to rulings upon evidence, 6 to specifications of alleged ir.Dsconduct of counsel for the prosecution in making improper statements in his argument to the jury ¡prejudicial to the accused; one alleges error in the refusal of the trial court to advise the juiry to return a verdict of not guil'tv, one specifies insufficiency 'olf the evidence to sustain the verdict; and two others, misconduct of the jury in taking to the jury room certain exhibits received in evidence to which were attached de-' positions -taken -in a civil case involving the same exhibits, which depositions had not been offered or received in evidence upon the trial of the criminal case. A new trial was granted -by the trial court, and 'the state appeals upon four assignments of error: (1) That the defendant is -barred from making the motion for a new trial for the reason that he first moved in arrest of judgment-, and ih'eneby waived his right to m-ove for a new trial; (2) that the alleged errors of -the trial -court in its rul-ings upon .the admission and -rejection of evidence were immaterial;. (3) that the evidence is sufficient to sustain the verdict; (4) that the depositions taken- to the jury .room by the jury did not influence ¡them. in. their deliberations upon the evidence, or in arriving at a verdict, and -such act was not prejudicial to the defendant.
“It is -clear to us that the willful issuing by a bank -officer íof a certificate of -deposit in an amount in excess -of the actual*109 deposit renders the instrument a false evidence of debt w-ithin the meaning of section 587, Revised Pen. Code 1903.”
The question of variance in this case is a serious one, and we have given it most careful consideration. Many decisions and statements of text-writers may be found, and many are cited in respondent’s brief, which hold such variances to be fatal an forgery cases. The reasons usually assigned are: First, that the accused is entitled to be informed of the exaot description and nature of the instrument forged, that he may not be misled as to its identify in the preparation of his defense; and, second, that the criminal act must be so accurately set forth in the Indictment or information as to disclose its identity upon another indictment for the same offense, and thus enable the accused to plead a former conviction oir acquittal in bar of a second prosecution. We are of the view that the variances between the instrument set out in the information and the instrument received in evidence should nlot be held fatal. Except in the three particulars above specified the instrument is identical in all respects with that 'described in the information, and this case falls clearly within the rule announced in People v. Terril, 132 Cal. 497, 64 Pac. 894, in which that court, quoting with approval from Underhill on Criminal Evidence, says:
“In determining whether a variance is material, the question to be decided is: Does the indictment so far fully and correctly inform the defendant of the criminal act with which*110 he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in clanger of being twice put in jeopardy for the same offense? * * * In this case the check described in the information and the check introduced in- evidence have so-many earmarks in common as to establish the identity of the two instruments as being one and the same beyond all doubt, and to indicate conclusively that 'the misdescription could not have misled the defendant to his prejudice, and that a conviction or acquittal of the offense' charged in this information would forever bar any further prosecution for the larceny of the check.”
The rule thus stated was applied in a forgery case, and the count further says:
“No one could doubt the identity of the note as being the one described in the indictment. The defendant could not have been misled by the description.”
In view of this well-established rule, we deem it unnecessary to review the - assignments as to the facts relating to misconduct of the jury in taking- to the jury room depositions not in evidence oir of counsel for the ip.ro secution in addressing the jury, further than to say we are not convinced that the trial court abused its discretion in granting the new trial. The .trial ■court was in a position to observe and judge the possible prejudicial effect of all these matters upion the jury, and the granting of a new trial is nothing short of a finding by the trial court upon the entire evidence and proceedings at. the trial that they were prejudicial to the accused to such degree that he did not have a fair and impartial trial.
The order of the .trial is therefore affirmed.