23 S.D. 465 | S.D. | 1909
Upon an information duly filed, by the state’s attorney of Hand county, charging the defendant with the crime of murder, he was convicted of manslaughter in the first degree, and, ■from a judgment entered upon the verdict of the jury, he ha.s ap.pealed to. this court.
It was the theory of the prosecution that, during the- absence of tlie deceased and her son from home, on the day preceding her death, the defendant went to the house and placed poison iii the
It is contended by the appellant that, in permitting the witness to answer the above question, the court committed erroi', for ther reason that it was calling upon the witness to • express an opinion from the testimony of other witnesses, and that the witness neitlie; testified from his own knowledge, nor from the state of facts
It is also contended that Dr. Seamon had not shown himself qualified as an expert, and therefore his evidence was inadmissible. He testified that he had been a practicing physician for some eight-years, the last four years of which he had practiced in the town of Rockham; and, while it is true that he testified that he had no ■ practical experience in cases of arsenic poisoning, still the fact that he had received a medical education, and had given the subject the consideration that would usually be given b)r a physician, he was clearly competent to give an opinion as to the cause of the death . of the deceased. In 17 Cyc. 38, the law applicable to this class of cases is thus stated’: “It will be assumed in practical administration that members of the profession, trade, or calling, after a reasonable length of time, have the knowledge common to persons so -engaged.” In Siebert v. People, 143 Ill. 571, 32 N. E. 431, the learned Supreme 'Court of that state held: “A licensed practicing physician, who is shown to be a graduate of a regular medical college, and to have practiced his profession for many years,, is competent to give his opinion, upon a hypothetical question setting forth the symptoms of a person immediately prior to his death, whether the death was from the effects of arsenical poison, althougn he may not be shown to have had any case of such poisoning. A medical witness, in giving- his opinion as an expert, is not confined to ooinions derived from his own observation and experience, but may give an opinion based upon information derived from medical books.” The court’s opinion in that case is exhaustive, and reviews the numerous cases bearing upon ¡that question, and arrives at the conclusion indicated by the headnote above quoted! While there is -some conflict in the authorities upon this subject the ruling of the court in the case at bar is, in our opinion, supported by the
It is also contended by the appellant that the cooked and uncooked oatmeal and the stomach of the deceased, which it is claimed was senlt to Prof. Whitehead at Brookings for examination, were not sufficiently identified; but we are of the opinion that there is no merit in this contention. It was clearly shown by the evidence that the identical oaltmeal, cooked and uncooked, found in the pantry of the deceased, was forwarded to Prof. Whitehead. The other objections, were not of .sufficient merit to require a special . discussion. The contention of the appellant that the court erred in admitting the testimony of Prof. Whitehead as to the chemical examination of the cooked and uncooked oatmeal and the stomach of the deceased, for the reason that the same was not sufficiently identified,' is clearly untenable for reasons above stated.
It is also contended by the appellant that the court erred in overruling the defendant’s motion to strike out the testimony of the witnesses James Palmer and William Erb. These witnesses had testified that on December 12th they were on the defendant’s farm , trapping, between the hours of 10 and 11 a. m., while the deceased and her son were away from Home. Mr. Erb testified he saw a man coming south on the private road from Fred Kammel’s place and saw that it was not his partner, Palmer, and Mr. Palmer testified that about the same time he saw a man on the west side of the fence, separating the two farms of .the defendant and his son, and that, when he reached the place opposite the place where the man was, he saw tracks across the ice of the creek, running across the two farms. The .witnesses did not pretend to identify the man they saw as the defendant; but we are of the opinion that the evidence was clearly admissible as tending to prove that there was a person in the vicinity of the house occupied by the deceased and
It is further contended by the appellant ■ that the court erred in its refusal to give the defendant’s requested instruction to the jury which is as follows: “Thi|3 is a case where the state seeks a conviction .on circumstantial evidence. The defendant is.presumed to be innocent until the contrary appears from the evidence; and, in order to convict, the circumstances must be so strong as to exclude every reasonable hypothesis except the guilt of the defendant. If the facts proven in this case can be explained upon any reasonable hypothesis consistent with the innocence of the defendant, you will then return a verdict of not guilty. And you are further instructed that the state in this case must not only show beyond a reasonable doubt that the alleged facts and circumstances are true, but that they (are absolutely incompatible with any reasonable hypothesis of the innocence of the accused, and that each fact necessary to establish the guilt of the accused must be proven by the evidence submitted to you beyond a reasonable doubt.” It clearly .appears from the charge of the court that the substance of this instruction was given to the jury. It instructed the jury that: “In order to convict, the circumstances must be so strong as to exclude every reasonable hypothesis, except the'guilt of the defendant, and, if the facts proven in this case can be explained upon a reasonable hypothesis consistent with the innocence of the defendant, you will then return a verdict of not guilty.” Again the court charged the jury: “If you can reconcile the evidence before you upon any reasonable hypothesis consistent .with the defendant’s innocence, you should do so, and in that case find him not guilty.” It will thus be seen that the instruction requested was embodied in the judge’s charge, though in the court’s own language. The trial court is not required to give an instruction in the exact language in which it is submitted, although it is correct in every respect ;' but it may be refused, and such instruction given by the "court in its own language.
In 2 Thompson on Trials, § 2352, that learned author, in dis'cussing this question, says: “It is not error for the judge to refuse requests for instructions upon propositions which have else
It is further contended by the appellant that the court erred in its .refusal, at the close of all the evidence, to advise the jury to 'render a verdict in favor of the defendant, and in denying defendant’s motion for a new trial on the ground that the evidence was insufficient to -sustain the conviction. A review of -the evidence, however, satisfies us that the jury was fully warranted in finding the defendant guilty, though the evidence was entirely circumstantial; there being no direct or .positive evidence as to the defendant’s guilt.
The evidence in the case is quite voluminous, and no useful 'purpose would be served by a reproduction of the same in this opinion.
The judgment of the circuit court and order denying a new trial are affirmed.