STATE of South Dakota, Plaintiff and Appellee, v. Alonzo O. PADGETT, Defendant and Appellant.
No. 12709.
Supreme Court of South Dakota.
April 30, 1980.
Argued Jan. 23, 1980.
The court entered the order to show cause on November 29, 1978, and set hearing thereon for December 12, 1978. It was not until November 30, 1978, that Batie‘s counsel made service by mail on Miedema‘s counsel of the demand for change of venue, affidavit in support of the demand, and the court‘s order to show cause. On December 1, 1978, in response to the demand for change of venue, Miedema‘s counsel served his affidavit in resistance to Batie‘s demand for change of venue. On December 18, 1978, the PCA joined Batie‘s demand for change of venue by filing affidavits with the court.
On January 26, 1979, the court denied defendants’ demand for change of venue. The court found that defendants did not comply “with Section 15-5-10, of the 1967 South Dakota Compiled Laws; in that prior to their time for answering the amended complaint, they failed to personally notify the Plaintiff or counsel of their desire for a change of venue * * *.” This appeal followed.
The only issue presented is whether Batie was required to afford Miedema an opportunity to consent to a change of venue, and if so, whether Batie failed to do so. There is a long line of case authority holding that failure of a defendant to attempt to obtain plaintiff‘s consent to a change of venue before approaching a court results in denial of the motion. Midwest Oil Co. v. Olson, 66 S.D. 90, 278 N.W. 544 (1938); Gotthelf v. Merchants Bank, 33 S.D. 259, 145 N.W. 542 (1914); Barbour v. Fidler, 31 S.D. 351, 141 N.W. 88 (1913); Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452 (1896).
In discussing the Barbour case, the court in Midwest Oil Co. v. Olson, 66 S.D. 90, 92-93, 278 N.W. 544, 545, stated:
[N]o effort or request or demand of any kind was made to obtain the consent * * * to a transfer of the case to the proper county, and it was because of the failure to make such effort that we held that the court was without jurisdiction to make the order transferring the cause * * *.
In Gotthelf v. Merchants Bank, 33 S.D. 259, 262, 145 N.W. 542, 543, the court stated:
[W]hen a defendant moves for a change of venue, the affidavit upon which his motion is made must show that he has already served upon plaintiff the written demand, and that defendant, though given an opportunity to consent to such change in one or the other of the methods provided by the statute, has neglected or refused to consent to such change * * *.
These cases address factual situations nearly identical to that in the instant case, and we view them as controlling precedents.
The order of the trial court denying defendants’ motion for change of venue is affirmed.
All the Justices concur.
Kevin F. Manson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Kenn A. Pugh, Legal Intern, Pierre, Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Le Roy Lassegard, Mitchell, for defendant and appellant.
Appellant was charged with manslaughter in the first degree and was found guilty by a jury of second-degree manslaughter. He appeals from the judgment and sentence entered on the jury verdict.* We affirm.
On the night of July 9 and the early morning of July 10, 1978, the parties and witnesses to this incident had been drinking at the Portside Inn outside Chamberlain. All stayed until closing. They left in several vehicles and stopped on the road a few miles away from the Portside Inn. From the frequently conflicting and ambiguous testimony regarding the incidents leading up to the fight and the stabbing, it appears that witness Clint Pearson at one point told Mary Newman, a rider in his automobile, that if she had lost her billfold he would “kick [her] ass.” Apparently believing the comment was intended for him, appellant, standing on the road nearby, asked Pearson, “Whose ass are you going to kick?” Pearson replied, “I wasn‘t talking to you,” or words to that effect. The victim, John Ranum, also said to appellant, “Just don‘t hassle us. We are not causing any trouble,” and “We didn‘t say anything to you.” Appellant pressed the issue a few more times, whereupon Ranum left Pearson‘s car and
There was evidence from which the jury could have found that appellant had his right hand free to inflict a powerful slashing blow with his pocket knife, one blade of which had been altered to allow it to fall open automatically and the other honed to a stiletto point. Prior to the incident Ranum and appellant were strangers to each other, and apparently there was no animosity between them.
Appellant‘s first contention is that the evidence does not establish beyond a reasonable doubt that appellant was not justified in using his knife to protect himself against a much larger assailant. Appellant is five feet, nine inches tall and weighs one hundred fifty pounds; Ranum was five feet, eleven inches tall and weighed two hundred pounds. Appellant contends that he had the right to use any means to free himself of the attack upon him by Ranum. Appellant argues that the fact that it took two strokes with the knife to repel the assault tends to show the intensity of Ranum‘s attack.
In State v. Rash, 359 Mo. 215, 221 S.W.2d 124, 126 (1949), the Supreme Court of Missouri said: “In resisting an assault a person is not required to determine with absolute certainty or nicely to gauge the amount of force necessary for that purpose, but the law does exact of him that he shall not use any more force than shall reasonably appear to him in the circumstances to be necessary for such purpose.” (citation omitted). From the record it appears defendant did use considerably more force than was reasonably necessary to extricate himself from a situation that he himself had provoked.
In determining the sufficiency of the evidence on appeal, the only question is “whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt.” State v. Shank, 88 S.D. 645, 650, 226 N.W.2d 384, 387 (1975). Because the killing was not disputed, only the issue of self-defense was left for the jury. “The evidence of the state, including the reasonable inferences which the jury was at liberty to draw from the circumstances presented,” must be sufficient to justify the jury verdict. State v. Bates, 76 S.D. 23, 30, 71 N.W.2d 641, 645 (1955). A review of the record shows that there was sufficient evidence to support the jury‘s verdict. The court should not disturb that verdict on appeal. State v. Bates, supra.
Appellant‘s second contention is that he should have been permitted to introduce evidence other than reputation about the true nature of the victim. Appellant attempted to establish the fact of Ranum‘s alleged propensities toward violent behavior by introducing exhibits C, D, and E, respectively an arrest report, a 1972 committal proceeding ordering Ranum to the Human Services Center in Yankton, and a 1971 conviction on a charge of assault. The arrest report related to a 1977 incident in which Ranum was charged with intentionally preventing an officer from carrying out his official functions; the case was pending at the time of Ranum‘s death. The trial court found that the 1972 committal proceeding and 1971 assault conviction were too remote and that the pending charge lacked probative value.
It is the majority rule that evidence of specific acts of violence or quarrelsomeness on the part of a victim are not admissible on the issue of self-defense. See, e. g., State v. Jacoby, 260 N.W.2d 828 (Iowa 1977); Perry v. State, 254 Ark. 939, 497 S.W.2d 10 (1973); People v. Adams, 71 Ill. App.3d 70, 27 Ill.Dec. 277, 388 N.E.2d 1326 (1979); State v. Maggitt, 517 S.W.2d 105 (Mo.1974); State v. Kimbrough, 173 Neb. 873, 115 N.W.2d 422 (1962); Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971); Annot., 1 A.L.R.3d 571.
A few jurisdictions permit evidence of specific acts of violence, even if unknown to the defendant, to show that the victim was the aggressor. See, e. g., United States v. Burks, 470 F.2d 432 (D.C. Cir. 1972); State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978).
At least one jurisdiction admits specific acts of violence known to the defendant for the purpose of showing the defendant‘s state of mind but does not admit such evidence for the purpose of showing the victim‘s violent character. See Werner v. State, 66 Wis.2d 736, 226 N.W.2d 402 (1975); McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973).
Appellant has presented us with no persuasive authority that
Although on appeal he complains of prosecutorial misconduct during closing argument, appellant failed to object to any of the remarks that he now contends were improper. In State v. Kindvall, 86 S.D. 91, 98, 191 N.W.2d 289, 293 (1971), we stated that a “defendant on appeal may not complain of alleged misconduct by the prosecution in argument to the jury unless such remarks were objected to when made and an admonition promptly requested.” Appellant is therefore precluded from asserting as error the alleged improper comments by the state.
Appellant‘s final contention is that the ten-year sentence, the maximum provided by the statute, was unfair and discriminatory. In State v. Robinson, 87 S.D. 375, 382, 209 N.W.2d 374, 378 (1973), we stated: “It is well settled by this Court that a trial judge has broad discretion to fix a sentence within the limits outlined by the statute.” If within statutory limits, such sentence is not reviewable by this court. State v. Helm, 287 N.W.2d 497 (S.D.1980); State v. McFall, 75 S.D. 630, 71 N.W.2d 299 (1955).
We have considered appellant‘s contention that the evidence did not warrant the giving of certain instructions and find it to be without merit.
The judgment is affirmed.
DUNN, MORGAN and FOSHEIM, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
I concur in the disposition of this case; but due to the position I have taken with respect to sentencing review, I cannot subscribe to the language contained therein that a sentence within statutory limits is not reviewable on appeal. See State v. Ellefson, 287 N.W.2d 493 (S.D.1980); State v. Helm, 287 N.W.2d 497 (S.D.1980) (dissenting opinion); and State v. Coe, 286 N.W.2d 340 (S.D.1979). The duration of this particular sentence, however, does not shock the conscience and reason of men generally and is not constitutionally offensive. With this noted exception, I therefore concur in the result and language of the majority opinion.
WOLLMAN
Chief Justice