*1 presented to the findings, apt motion was posed other .Nevertheless, court, we have appeal must be dismissed. trial is no clear that there and are satisfied the evidence reviewed against by the found the facts preponderance of the evidence court. judgment is affirmed. BIEGELMEIER,JJ.,
HOMEYER, J., BAN- RENTTO and P. Judge, DY, concur. Circuit sitting Judges, LUND, ROBERTS Circuit
BANDY HANSON, JJ„ disqualified. LANGE,
STATE, Appellant Respondent v. 635) (152 N.W.2d 1967) (File Opinion September filed 10311. No. *2 Maulé, Maulé, Maulis, Jr., Winner, Day, Day & William F. appellant. for defendant Andre, Farrar, Gen., Gen., Atty. Atty.
Frank Walter Asst. Pierre, Winner, Simpson, respondent. plaintiff John J.
HOMEYER, Presiding Judge. Defendant, Lange, Frank with and found R. guilty appeals. He as- (1) refusing quash serts error in the information for failure to (2) properly insufficiency state the offense of the evidence *3 (3) (4) support attorney, the verdict misconduct the state's and of prejudicial receipt of and error evidence instructions. August 3, 1965
The information the defendant on "did, feloniously willfully upon a human and make an assault being, design Kewley, William H. without a to effect death and injury Kewley upon such action inflicted said William H. Kewley, H. and did which resulted in the death said William Manslaughter commit the crime of In The First then there * * Degree manslaughter degree perpe- Homicide is "When design pas- death and in a heat of trated without a to effect sion, manner, in a cruel and unusual means of a dan- but gerous weapon; it is under unless committed such circumstances 13.2013(2). justifiable homicide". SDC as constitute excusable record briefs it was intended It is clear from the that charge quoted of the man- the defendant subsection slaughter employed; weapon hence the crim- No statute. design alleged "perpetrated without a must have been inal act passion, in a cruel un- in a heat of but to effect death and usual manner". 324, Belt, 111 N.W.2d v. 79 S.D.
This court
in State
sufficiency
588,
on the
statutes
and decisions
reviewed
our
liberality
pleading
is manifest
that considerable
and it
criminal
only
it is
have been abolished
permitted. Technicalities
is
designated
usually
name
necessary
plead
in its
the offense
language.
if it en-
ordinary
An information
is sufficient
plain,
understanding
person
ables a
of common
to know what
is in-
language
However,
tended from the
therein.
"must
contained
it
apprise
certainty
the defendant with
of the
reasonable
accusa-
against
may prepare
plead
tion
him so that he
his defense and
judgment
subsequent
prosecution
as a bar to a
for the same
Sinnott,
100,
offense." State
Despite
v.
72 S.D.
In State v. 20 S.D. 104 N.W. 21 S.D. 108 N.W. the defendant was convicted of charge the first under a that he struck and beat the de- inflicting causing ceased with a wooden club wounds death. charge Contention was made it did not murder or man- *4 slaughter degree charged manslaughter in the first and at most degree. in the second A divided court held the information suf- charged killing willfully ficient in that it the accused with another being club, human produced with a wooden which if it death dangerous necessarily weapon, as used was a without excuse or justification and the acts which caused the death were inten- tional and not accidental or mistake. The court said: "So, being when human one kills another in a cruel unusual manner under circumstances which neither ex- killing, being justify cuse nor the or where one human dangerous weapon kills another means of a justify circumstances which neither excuse nor kill- the ing, manslaughter the crime is at least in the first de- gree, killing may be if murder is done with the malice essential to that offense." dangerous weapon employed as no
Where
manslaugh
ingredient
here,
of the crime of
a vital and essential
perpetrated
cruel and un
in a
is that
ter in the first
13.2013(2).
Knoll, 72 Kan.
See State v.
manner under SDC
usual
Neither
these
are the words of the statute.
Although appeal, disposes we are of judgment opinion should also be reversed because sustain a conviction of man- is not sufficient the evidence 13.2013(2). slaughter degree under SDC in the first man, years grayish, old and decedent was small weighed pounds. farm or near He lived on a ranch about 130 midmorning August on 1965. drove to town about Winner and spent until which of his time in bars the altercation re- most He apparently consumed a consider- death and had sulted in his intoxicating beverages. able amount of sons-in-law, son, James, Harold McElfresh and and two His evening early Conway, quit work in late afternoon Joe brought drinking spree them to Winner which went on a beer drinking They p. bars m. made the rounds of the about 10:30 up met with the decedent at one considerable at each and decedent, early, Conway left for home them. Joe son, pat- Winner and continued McElfresh remained ronize its bars. m., p. at Peacock Bar about 11:00 arrived
The defendant salesman, young Patrick Devitt. Both he met a where James drinks. McElfresh and defendant had some Devitt and the James midnight Kewley and the deced- the Peacock about came into *5 trouble half There is no evidence a hour later. ent about Peacock. The record is not too clear these men between departure, sequence appears it first or the to who left as developed the decedent and Devitt out- between some trouble closing They side the Peacock about 1:00 a. m. which was time. gutter separated by wrestled the street and and were James language exchanged Kewley. Foul and the noise created neighboring awakened tenants. In the course of events stripped preparation phy- decedent himself waist grabbed sical encounter and was the defendant who either dropped causing injury or hurled him onto the sidewalk a fatal days to his back from which he died two later. The defendant threw also son onto the sidewalk. The evidence is clear James single injury the decedent sustained from a momen- tary assault. age record, appear
The of the defendant does not in the apparently man, younger but he is a much and a witness sleep by the state who was aroused from his the noise and viewed apartment the disturbance from a second floor about 250 feet distant, having described him as a build like Charles Atlas. decedent, though older, lighter considerably weight, The and led an clamp active life and was able to a hold on Devitt caus- ing shortly him to lose consciousness before he sustained injury. testimony fatal The also shows that less than two months eighty 100-pound before he 'sheep days sheared in two aided pulley a device to relieve strain on his back. phrase "in a cruel appears and unusual manner" statutes of a number of states and courts attempted
have apply to define it and it to variant factual situa Knoll, tions. In State v. burly Kan. 83 P. a defend sickly slightly ant beat built hunchback until the defend bloody. leg, ant's fists were The victim suffered a broken num injuries erous lacerations complications and other which led to eventually drinking. participants death. Both had been The evidence was held insufficient to sustain a conviction and the court said "there must be some refinement or excess of cruelty sufficiently approach barbarity, marked to and to make shocking; especially and the unusual character of the man displayed sufficiently ner peculiar unique must stand out as surprise to create capable and astonishment and to be of dis strange." Though savageness crimination as rare and assault, injuries pain coupled the deceased's with the *6 672 appearance physical and deced-
disparity defendant's between brutality, that court said the spectacle still presented a ent's fight type ordinary this very in a was of death manner legislature. by contemplated quality the unusual lacked the 300, year Diggs, old 402 P.2d a 58 194 Kan. In State v. man, year offered no old who resis- 78 a frail defendant beat striking jealous rage times tance, him several drunken in a blacking ribs, breaking eyes fists, both several his with injuries two esophagus. died of his The victim rupturing posi- to adhere to its court continued days The Kansas later. un- a cruel and what constituted case as to the Knoll tion in stronger presented a case the facts and said usual manner reversing in the Knoll case. conviction than a ours, very to similar under a statute York court
The New opinion Vollmer, N.E.2d in an People 299 N.Y. 87 v. Judge the "To 'cruel and unusual' said Desmond written ag- in it some must have of a homicide of commission manner something element, something ordinary, gravating out of the ap- shocking phrase could not be It was said the barbaric". flurry from a defendant's fists plied where a of blows to a case However, when the victim to his death. other man sent flurry caused a mere death was not and her a woman beating fists, from a sustained from the defendant's blows period by forty-five drunken defendant thirty minute a to over decedent, weighing same court pounds more than 100 Lee, it was People N.Y. 91 N.E.2d v. said was cruel jury say the manner of death or not to whether in fact. and "inhuman"
Giving con its most favorable evidence the state's from met his death in the decedent it is manifest struction ordinary juries in which drunken street brawl in an sustained throwing the only hands victim used his bare the defendant shocking nothing pavement There was or sidewalk. once to single momentary A of death. manner about or barbaric willing blow, applied combatant pavement, to a thrust to the sufficiently force is not applied with considerable when even accomplishment ferocity, and manner of duration unique decide, question jury it a either to whether make for the as *7 killing not, or unusual. was cruel or or whether it was usual urged Other if error has been considered we doubt consequence be would of sufficient reversal. Neverthe- merit less, we do not condone the of for the conduct counsel either bantering defense,1 prosecution, type for or and the of be- by tween counsel exhibited record us should not be before judge. by participants tolerated a trial It no on reflects credit respect they for the courts which of are officers. clarity The instructions are no or correctness and model objections counsel's thereto should be remedied on retrial. We using particularly purpose see no the words "of the laws society" appears God and in Instruction No. 15 which to have improvised been from Instruction No. of the Dakota 520.07 South jury Pattern Instructions.
Reversed. RENTTO, JJ„
ROBERTS and concur. J.,
HANSON, dissents. BIEGELMEIER, J., part. dissents in BIEGELMEIER, Judge (dissenting concurring part result).
I. part opinion I cannot concur in the which holds the charge manslaughter information is insufficient in the first degree. majority Belt, 1961, opinion The cites State v. 79 S.D. may N.W.2d it while not be the intention to (SDC opinion charge overrule it as that dealt with a murder 13.2007) degree manslaughter (SDC 13.2013), and this offense is first appears principle to me that the same is involved. In Belt the charge of murder stated that on a date certain defendant did "unlawfully, feloniously, aforethought, wilfully and with malice being, Perreault, murder a human thereby Earl and did com- upheld though mit the crime murder." We this information appeal represent Counsel on 1. defendant did not him in the trial court. may perpetrated methods or man- four different
murder degree manslaughter may committed First likewise be ners. manners, only three for while there are four different methods (2) subdivisions, includes two different methods. Hubbard, 104 N.W. State v. 20 S.D.
In trial court instructed with murder and the defendant degree, law of that offense and on the degree manslaughter. for second refused an instruction second man- that it was error not to instruct on court held charge slaughter. Therefore, in a of murder the information need Belt, not, anything more than is set out above state any of methods or manners set forth in its not state need *8 Hubbard, yet, jury the must be in- four subdivisions manslaughter degrees first and second and structed on both jury may included offenses. We convict of those the charge degree anomalous situation that a of first man- have the slaughter precise specify or more of the methods of must one charge manslaughter yet a defendant could con- the charge first under a murder of the victed any of murder or man- which did not mention the methods of degree. Edmunds, slaughter Our court in State v. in the first held 1115, 1905, 135, an information was sufficient 20 S.D. 104 N.W. killing being charge "by with another human to the accused dangerous weapon", precise words of a which are the means 13.2013(2), phrase that was omitted from the used SDC when information. remedy entitled to further of defendant who felt he was prepare defense would be to ask the
information in order
to
particulars
which
of
or where evidence was offered
court
a bill
him,
surprise
application
to the
was a
to
to make
he could show
testimony.
postpone
such
trial to enable him to meet
court
to
the
1917,
353,
Otto,
appeared
That
v.
38 S.D.
II. question sufficiency sustain While of the evidence to degree manslaughter first verdict is close one I do agree Supreme appears not with all cited Kansas opinions, Court standard evidence here lacks the set Court, part opin- New York and therefore I concur in that of the guilty ion which holds it insufficient to the verdict sustain degree manslaughter consequent reversal judgment. say HANSON, }.,
I am authorized to concurs in Part I. of this dissent.
EGGERS, EGGERS, Respondent Appellant v.
(153 187) N.W.2d *9 (File Opinion 2, 1967) No. 10417. filed October