5 S.D. 480 | S.D. | 1894
At the regular July, 1893, term of circuit court for Lyman county, plaintiff in error was indicted for the crime of murder. Among the names indorsed on the back of the indictment as witnesses, sworn and examined before the grand jury, was Dr. Felker. During the session of the gand jury at which the indictment was found, and for the purpose of examining witnesses and performing the duties of state’s attorney, George H. King, an attorney at law, 21 years of age, and duly appointed deputy state’s attorney of Lyman county, was present in the grand jury room. A motion to qu'ash the indictment was duly made, upon the ground that the name of Moses C. Felker, one of the witnesses examined before the grand jury, was not inserted at the foot of the indictment or indorsed thereon, and for the reason that George H. King was not qualified to act as deputy state’s attorney, for the reason that he was not at least 25 years of age and did not possess all the statutory qualifications for a state’s attorney. Upon the hearing of the motion to quash the indictment, counsel for plaintiff in error called Moses C. Felker, who testified that he was a resident of Lyman county, S. D. ;■ that he was called and exr amined as a witness before the grand jury, in the matter pf the state against Frank B. Phelps, charged with the murder
George H. King was the only attorney who appeared before the grand jury. His appointment as deputy state’s attorney was in writing, signed by Luke Hayes, the state’s attorney of Lyman county, and filed in the office of the clerk of the circuit court. Section 24 of article 5 of our constitution requires, among other qualifications, that a state’s attorney must be at least 25 years of age, and, in the light most favorable to counsel’s contention, it must be conceded that George H. King was the defacto deputy state’s attorney at the time he appeared before the grand jury; and, so far as the rights of the state and the people are concerned, his acts, in that event, would be as valid and binding as though he had been an officer de jure, and the validity of such acts could not be questioned collaterally in proceedings to which he was not a party. State v. Carroll, 38 Conn. 449; Mechem, Pub. Off. 328-330, and cases there cited. Section 1 of chapter 108 of the Laws of 1891 provides that a state’s atttorney may appoint a deputy'who shall
After the motion to quash the indictment was overruled, defendant entered a plea of not guilty, and applied for a change of venue, which was granted; and the case was tried at the November, 1893, term of the Hanson county circuit court. That plaintiff in error procured the witness Henry Shroeder to effect the death of one Mot Matson was the theory upon which the cause was prosecuted to a verdict of guilty as charged in tbe indictment. Our statute abrogates all distinctions between an accessory before the fact and a principal; and one who is concerned in the commission of a felony, whether he directly commits the act constituting the offense,'or aids and abets in its commission, though not present, must be indicted, tried, and punished as a principal. Oomp. Laws, §§ 6226, 7260. It appears from the evidence that the defendant Phelps was the owner of land situated on an island in the Missouri river, where he resided with his family during the winter of 1892-93, up to and including a portion of the month of April of that year, when he removed with his family to Chamberlain, leaving the witness Shroeder, who had been in his employ for several months, upon the island where he continued his labors in chopping and hauling wood for the defendant, up to the time of the commission of the offense for which the defendant Phelps was indicted. The Matson family, two brothers, Mot and Olin, and their sister Christina, resided j ust across the slough from and near
The witness Henry Shroeder, who testified that he fired the fatal shot, was permitted to testify fully concerning his rela
The witness Shroeder, after testifying specifically concerning the persistent efforts of the defendant to induce him to commit the crime, by offering to give him a part of the island, a span of horses, harness, and wagon if he would kill the Mat-sons, and of the numerous assurances that no one would suspicion the witness if he would take defendant’s gun, and go right over to the house, and “clean out the whole shooting match,” testified that the defendant used the following language: “You want to nail them, — nail them. There aint going to be anything done to you. I am the man they will jump.” Then “we can run things just to suit ourselves. We can run the Indian cattle here, the calves that they aint branded, and who in hell will know it? * * * I was afraid of Prank Phelps. I thought, if I didn’t do it, he would kill me. Then Saturday evening I went. over there. It was probably about nine o’clock. That night I went into the yard to the west window, and raised the rifle five times. Mot Matson was sitting in the door, and George was sitting on the south side of the house, inside. I' did not see Christina that night. •And the fifth time' I raised the gun I fired and, at the same time I fired, I heard a loud scream in the house; and what I done after I fired the shot I don’t know, until I recognized or realized where I was on the island, at the south end of Prank Phelps’ log house. I had hold of the barrel of the rifle. It was Prank Phelps’ rifle. I got it of Prank Phelps, the defendant in this trial. Prank Phelps gave me this rifle, and said: ‘This is the thing that will do them.’ Prank Phelps and I went out on the island one day about twenty rods south of the house, and he told me — He had the gun in his hand, and he says: ‘This is the thing that will do them.’” To attempt to quote all or any considerable part of the testimony of this witness, which is at great length, would needlessly extend this opinion beyond reasonable limits, and we will dismiss the
While the character of a person accused of a crime in a court of justice is attacked by the charge against him, it is not competent for the state to offer evidence for the sole pm pose of proving his bad character, unless the defendant has first introduced testimony for the purpose of proving that his character was good; and, as counsel for the defendant contend that evidence of that nature was improperly introduced on the part of the state, we will examine the record before us with a view to a determination of that question. Sheriff Morgan was called as a witness on the part of the state, and testified as follows: “Q. You may state what the defendant said when you arrested him? (Objected to as incompetent.)” Counsel for the prosecution stated that it was to show his habitual use of profanity, and the objection was overruled. “A. He says: ‘G-d--it. I don’t know what they want to arrest me for. I was in Chamberlain.’ I told him what Miss Matson said, and he still protested his innocence in the same way, at different times, right along in the same language. I don’t know that he looked any different from what he did any other time.” Statements made by a person accused of a crime, together with his demeanor at the time of being placed under arrest, are always open to inquiry when not made under duress, or induced by meance.or promises of immunity; and the statement of counsel that he desired to introduce such evidence for an immaterial and an objectional purpose would not alone render the same inadmissible or prejudice the rights of the defendant. People v. Wentz, 37 N. Y. 303; People v. Long, 43 Cal. 444; Com. v. Crocker, 108 Mass. 464; People v. Montgomery, 13 Abb. Pr. (N. S.) 209; 3 Rice, Cr. Ev. 318.
The defendant testified, in response to a question propounded by his own counsel, that he stated at the time he
A defendant who does not claim his privilege, but, at his own instance and in his own behalf, takes the witness stand, and testifies without reservation upon all the issues involved, may, within the discretion of the court, be interrogated on cross-examination concerning matters which tend to impugn his moral character or lay the foundation for impeachment. In Territory v. O’Hare, 1 N. D. 31, 44 N. W. 1003, which was a trial on an indictment for murder, Justice Wallen, speaking for the court says: “Defendant voluntarily took the stand as a witness in his own behalf, and testified at large upon the issues. Upon cross-examination he was required to testify to his antecedents, and, in doing so, stated that he had passed
Dr. Duncan, who conducted the post mortem examination over the body of the deceased, after testifying at length on the part of the defense as to the condition and extent of the wounds and after describing a certain gunshot wound, and a fracture of the skull and upper jawbone, was interrogated by defendant’s counsel as follows: “Q. In your opinion, how was the depression on the left side of the head made? A. I can account' for it in no other way than it was done by a blow on the head. I should presume it was a blunt instrument. My opinion is that the wound was caused by a blow from some blunt instrument; as I have said a while ago, in my opinion, that the fracture on the lower jaw was made by some blunt instrument.” He further testified that he observed blood on the grass and ground, and saw an ax and monkey wrench near by; that the lips of the wrench were screwed up close together, and
While we have not deemed it essential to take up in regular order, and discuss specifically, the very numerous assignments of error prepared and submitted by learned counsel, relating to the admission and rejection of evidence upon the trial, we have given to each question merited consideration, and are convinced from a careful examination of the record before us that there is no reversible error in the rulings of the court upon the admission or rejection of evidence; and, in our opinion, the malice of the defendant towards the Matsons, and his motive for desiring to dispose of the entire family, together
The thirty-third assignment of error is as follows: “The court erred in permitting counsel for the prosecution, in the closing argument to the jury, over the objection of the defendant, to argue and discuss questions outside the record in the case.” It appears from the record that one of the attorneys for defendant, in making his argument to the jury, asked in a criticising manner a number of questions concerning the authority by which some of the counsel for the prosecution appeared in the case, and these questions seem to be directed to such counsel, one of whom, in closing the case to the jury, explained the relation of himself and his associates to the prosecution, and briefly discussed the subject with a portion of the evidence of one of the witnesses. Counsel for defendant objected to the argument and statements that were being made, on the ground that the same were entirely outside the record, and. the court made the following statement: “I understand counsel asked Mr. Argo to explain his connection in this case. In the opinion of the court, the counsel has fairly stated the isvidence before the jury. If he has not stated it, gentlemen (addressing the jury), you should know what the evidence is, and will not give weight to any statement that does not fairly present the evidence, and you will treat the argument, being careful not to accept as evidence anything but what is evidence, and you believe it from what you have heard.” Where a dispute arises between counsel as to the exact testimony of a witness, and the matter is brought to the attention of the court by a timely objetion, the presiding judge may settle it from his memory or the reporter’s notes; or he maj^, as was done in this case, submit the matter to the recollection of the jury, with the
Counsel for defendant requested the court to charge the jury that “if any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s .guilt, then the jury cannot find the defendant guilty. ” The refusal of the court to give this instruction is assigned as error, and, as the courts of Indiana and Kansas have looked with favor upon an instruction substantially similar, we will see from an examination of the court’s charge to the jury whether the individual responsibility of each juror was sufficiently covered by such instructions, as to enable each member of the jury to know that, in order to convict the accused, he must be satisfied from 'the evidence, beyond a reasonable doubt, that the defendant committed the crime as charged in the indictment. As no other objection is made to the numerous and well considered instructions of the learned court, the entire charge will not appear in this opinion. After correctly defining and fully explaining a “reasonable doubt, ” and in addressing the jury generally, the court used the following expression: “If you, gentlemen, should be satisfied beyond a reasonable doubt,” etc. In speaking of the condition of the
From a consideration of all the objections raised by learned counsel, and from an examination of the entire record before us, we are convinced that the defendant’s trial has been fair and impartial, and that no prejudicial error can be found in the record. The conviction should be sustained, and the j udgment is affirmed.