220 N.W. 139 | S.D. | 1928
On the 30th 'day of April, 1926, defendant shot and instantly killed Hugh L. McNamara, sheriff of Hyde county.' He was afterward tried and convicted of murder and on the 16th of June, 1926, was sentenced to life imprisonment in the state penitentiary. From the judgment and an order denying a new trial, he appeals.
The shooting occurred in Hyde county on a farm that had been the home of appellant and his family for many years. 'Difficulties arising from the foreclosure of a mortgage and subsequent litigation over the farm culminated in the homicide. Appellant had lost the farm through the foreclosure and it had been purchased by Quirk and by him leased to Peet. Appellant refusing to surrender possession had been removed by the sheriff under an execution in forcible entry and detainer. After service of the execution an appeal was taken and supersedeas bond furnished pending appeal, but exceptions were taken to the sureties on the bond, and, without attempting to justify the sureties, appellant returned with his wife and son to the farm, and, on the day of the homicide, was holding possession against Quirk, the purchaser, and Peet, his tenant. Quirk, and Peet with his family, came to^ the place on that day several hours before the sheriff, but there does not appear to have been any trouble until the sheriff came
He seeks a reversal on the following grounds: First, that the court erred in- denying him- a change of venue; second, because of errors in the receipt and rejection of evidence and the misconduct of the state’s attorney in offering certain exhibits and evidence on the trial; third, because of the insufficiency of the evidence to support the judgment.
Appellant moved for a change of venue on the ground that a fair and impartial trial could not be had in Hyde county by reason of the prejudice of the citizens of said county against him. This motion was made after a change of judges had been obtained upon an affidavit of prejudice. The motion for change of venue was supported by a number of affidavits. One was by
Philip Meservey, a son of appellant, who was also charged with the murder of deceased, made an affidavit to- the effect that when he was arrested and brought into Highmore, the county seat, he and the officer having him- in custody were surrounded by an angry crowd, and the officer, fearing for his life, took him to the Hyde county jail and shortly after to the Hughes county jail at Pierre; that later, on May 3d, when he was brought before a justice for preliminary hearing, he heard remarks (not set out) that caused him to believe that he was in danger of losing his life if he was kept in the Hyde county jail; that he was again brought to Highmore for a hearing on May 13th, and, when he asked for a continuance to get counsel, he was given 30 minutes to obtain counsel; that thereafter he was committed to- the custody of the coroner of Hyde county and by him taken to the Beadle county
The state filed counter affidavits denying that appellant -could not have a fair trial in the county, and also stating the removal of appellant to Pierre was because there was no county jail in- Hyde county, “merely a sort of lockup,” and it had been customary to-keep prisoners in Hughes county jail; that the removal later to the jail at Huron was because of sanitary conditions and that neither the removal of appellant to- Pierre or to Huron was because of fear of mob violence against either defendant; that there were no relatives of deceased in Hy4e county, except three brothers, one sister, and- a father, and that all of them had maintained a “dignified silence in order that the accused might have a fair and impartial trial”; that, when accused- and his son were brought to Highmore (which was the home of deceased and all his relatives), they were taken to a restaurant for supper about 8:45 in the evening; that the persons having them in custody were.unarmed-; and that, while there was a cro-w-d on the street apparently attracted by curiosity and a desire to hear the details, they were not excited, made no threats of violence and offered none. The state made a very strong counter showing, going into detail,’ and produced the -affidavits of several who had been about the county in many places, to the effect that there was no excitement and no apparent prejudice against accused and gave in detail the place of residence of each of the affiants making affidavits for accused, showing that they were nearly all immediate neighbors of accused in the extreme northwest corner of the county and could not know the general sentiment of the county.
It will not be necessary to further detail the facts set out in the affidavits on -either side. The case was tried in Hyde -county and no -complaint is m-ade that a fair jury was not obtained. No-ex-ception is taken to any ruling of the court in selecting the jury and no showing that the voir -dire examination disclosed any bias
“May we ask the court to keep the audience from making any demonstration ?”
—to which the court replied:
“This is the first time they have made any demonstration. Now, I don’t want any more demonstration by the audience.”
When the- demonstration occurred or what it consisted of does not-appear.
We do not deem it necessary to review the cases cited iri reference to the rule governing a change of venue. We recognize the right of appellant to a fair trial; that an excited state of public feeling is always the most unfavorable for an investigation of the truth and that not only should the minds of the jurors be without bias and prejudice, but the minds of the jurors should be, as far as possible, removed from the prejudice and excitement of others, as announced by this court in State v. Perkins, 36 S. D. 579, 156 N. W. 73. In allowing or refusing a change of venue the court must be governed by a sound judicial discretion and the material issue is whether there is in fact a prejudice in the minds of the inhabitants of the county sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial in the county. People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, Ann. Cas. 1915A, 1171. In the case at bar, there is no ground for apprehension that the accused did not have a fair trial in the county. There was nothing in the conduct of the people to indicate either excitement or prejudice, and, beyond the fact that deceased was a popular sheriff of the county, nothing to indicate that the people would desire other than a fair tria} and punishment of the accused, if guilty. In view of the entire record, subsequent events, and the character of appellant’s defense, there is nothing to indicate he did not receive a fair trial, or that he could have been prejudiced by a denial of his motion.
Appellant’s son stood on guard armed with a .45 caliber revolver during the altercation and. the state’s attorney proved this in connection with the other circumstances and facts surrounding the tragedy and offered the son’s revolver in evidence. This is claimed to have been misconduct on the part of the state’s attorney. The revolver was excluded from evidence, but the position and attitude of the son were admitted. There was no misconduct in thus proving the facts. They were a part of the surroundings, and the setting in which the crime was committed.
We have carefully examined the evidence with the objections and rulings of the court and find none of sufficient importance to warrant a discussion. We notice no error, and, certainly, none that would warrant a reversal as prejudicial. We are satisfied that appellant had a fair and impartial trial and that the judgment is amply sustained by the evidence.
The judgment and order appealed from, are affirmed.