22 S.D. 433 | S.D. | 1908
Lead Opinion
This appeal is from an order denying defendant’s application for a new trial. Accused of murder she was found guilt}’- of manslaughter in the first degree,' the charge being
The first ground of defendant’s motion for a new trial is in effect that she was prevented from having a fair and impartial trial by reason of the misconduct of counsel for the state. In support of this ground numerous instances of alleged misconduct on the part of the special prosecutor are specified in the assignments of error. If there were any irreg-larities in this respect which were prejudicial to the substantial rights of the defendant, they are reviewable on this appeal. Rev. Code Cr. Proc. § 430, subd. 4; State v. Place, 20 S. D. 489, 107 N. W. 829. The decisions wherein misconduct of counsel has been considered are numerous. It is believed that all rest upon substantially the same fundamental principles, though different language may be employed in the application of such principles to the peculiar facts of each particular case. In all these cases the ultimate and controlling questions are whether the verdict is or must be presumed to be a fair expression of the opinion of the jurors upon the issues submitted by the court, and whether such opinion was based alone upon the evidence received on the trial. Concerning the conduct of counsel in civil cases this court has said: “Within the limits of the testimony, the right of argument, criticism, and comment is free; but when counsel makes assertions calculated to prejudice the minds of the jury, not warranted by the testimony before them, he goes beyond the freedom of discussion the law and the courts allow him. The only matters proper to be considered .by the jury are the issues raised by the pleadings and the evidence
Mindful of these recognized standards, we proceed to consider some of the many instances of alleged misconduct disclosed by the record in this case. The opening statement to the jury on the part
To reproduce all the portions to which exceptions were interposed would be substantially to reproduce the entire address and to extend this opinion beyond all reasonable limits. The address abounded in misstatements as to the law and the evidence; it was replete with appeals to passion and prejudice; and it reveals an intentional disregard of the decisions of this court by repeated allusions through artful indirection to the fact that the accused had not testified in her own behalf. During the trial numerous manifestly incompetent questions were asked for the evident purpose of influencing the jury, many of which were subsequently withdrawn. Dramatic situations and scenes calculated to incite sympathy and prejudice, which should have been prevented or repudiated by the special prosecutor, if in fact he did not inspire all of them, were not wanting; such as the offering, in open court, of a prayer by the dead girl’s mother for the forgiveness of those connected with the death of her daughter; the identification and exhibition of Agnes’ sister Elizabeth, who was not called as a witness'; and the interruptions of a woman who vehemently insisted that “beer” was the cause of the crime. Clearly, this is not the case of a thoughtful, conscientious advocate, prompted alone by a desire to have the
Certain questions likely to arise upon a retrial 'will be briefly noticed. The court did not err in admitting testimony as to. other wounds than those described in the information, as the physical condition of the deceased at the time of her death, and of her body at the time of the post mortem examination, was essential to- any’ reliable opinion concerning the cause of death. The character of the clothing worn by the deceased when taken to- the hospital was not
Concurrence Opinion
(concurring). While I concur with the views of the presiding judge in holding that the trial court did not properly exercise its discretion in denying a new trial, in view of the irregularities of the special counsel on the part of the state and in the proceedings occurring at the trial, I am inclined to the opinion that the defendant is entitled to a new trial on the ground that the special counsel in his argument to the jury called their attention to the fact that the defendant had not been called as a witness in her own behalf on several occasions during his concluding argument. It is true that counsel did not in terms state to the jury that the defendant had not been called as a witness, but he so plainly indicated to them that such was the fact that the jury could not have misunderstood that their attention was called to this fact, as we must presume that the jury was composed of intelligent persons who could readily understand the -full import of the language used by the counsel when referring to the failure of the defendant’s counsel to disprove the testimony offered on the part of the state, when it was in his power to have disproved it by the defendant’s own testimony.
In State v. Bennett, 21 S. D. 396, 113 N. W. 78, this court very fully considered the question as to the effect of counsel calling attention, in the presence of the jury, to the fact that the defendant had not been called as a witness in his own behalf, and quoted quite fully from the opinion of Mr. Justice Field, delivering the opinion of the Supreme Court in the case of Wilson v. United States, 149 U. S. 60, 13 Sup. Ct. 765, 37 L. Ed. 650, in which that
The order'appealed -from is reversed, and a new trial ordered.