8 S.D. 69 | S.D. | 1895
Under Sec. 6884 of the Comp. Laws, plaintiff in error was indicted for, and upon the trial found guilty of, the offense of maliciously exposing a poisonous substance, with the intent that the same should be taken by an animal, to wit, a certain horse. Omitting formal recitals, the indictment is as follows: “That Peter Isaacson, late of said county, yeoman, on the tenth day of May, in the year of our Lord one thousand eight hundred and ninety-five, at the county of Grant and the state of South Dakota, did commit the crime of maliciously exposing poison with intent that the same shall be taken by an animal committed as follows, to wit: That at said time and place the
Upon the ground that the indictment did not state facts sufficient to constitute a public offense, a demurrer was interposed, and the action of the court in overruling the same is assigned as error. The indictment appears to be substantially in the language of the statute creating the offense, direct and certain as to time, place and the party charged, and the particular acts constituting the offense are set forth in ordinary and concise language, apprising the accused fully of the nature of the charge against him. In our opinion the demurrer was properly overruled.
After plaintiff in error had entered a plea of “not guilty,” and before the case had proceeded to trial, his counsel learned for the first time that the name of a witness examined before the grand jury had not been inserted at the foot of the indictment or indorsed thereon, and a motion to set aside the indictment, based upon that ground, was made, and overruled by the court, as coming too late. Counsel for the accused then asked leave to withdraw the plea of “not guilty,” for the purpose of renewing his motion to quash the indictment upon the ground above specified. The court in effect stated that the motion was made too late, and the application to withdraw the plea and move to set aside the indictment was denied. This ruling is assigned as error, and counsel maintains that the court
Before the trial commenced, counsel for the prosecution gave oral notice in open court that certain witnesses not examined before the grand jury would be called on the part of the state, and in view of our statute there is no merit in the contention that such witnesses should not have been allowed to testify, because the motion was not in writing and given at an earlier time. State v. Church (S. D.) 60 N. W. 143, and cases there cited.
* Over the objection of counsel for the accused the preseeut-ing witness and owner of the horse mentioned in the indictment was allowed to testify as follows: “As soon as the horse died, Andrew Melander and myself cut the horse open and took out the contents of his stomach. I administered some of the contents of the stomach of said horse to a hen on the 11th day of May, 1895, and the hen died in ten or twelve minutes from the effects thereof.” We think the evidence as to what he did was 'admissible. A nonexpert, shown to be familiar with eviden-tiary facts, may, when the expression of an opinion is not involved, ordinarily state the result of his observations with ref