22 S.D. 550 | S.D. | 1908
Lead Opinion
Upon an information duly filed by the state’s attorney of Lyman County the defendant was tried and convicted of the crime of buying and receiving, stolen propertv knowing the same to have been stolen, and from the judgment he has appealed to this court.
The first error assigned is that the court erred in overruling defendant’s demurrer to the information. ,To this information the following demurrer was interposed: “The defendant demurs to the information herein upon the ground: First, that more than one offense is charged, viz., buying stolen propertjr knowing the same to have been stolen, receiving stolen property knowing the same to have been stolen; second, that the facts stated in said information do not constitute a public offense.” It is alleged in the infor
It is contended by the appellant that the court erred in not postponing the trial to enable the defendant to procure the itesti-mqny of one Ash, who the defendant claims was a material witness in his behalf, and who was at the time out of the state. Section 535 of the Revised Code of Criminal Procedure provides: “If the court or judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness
It is contended by the appellant that the information is insufficient for the reason that it is not alleged therein that the said property was purchased or received “upon any consideration,” as one of the essential ingredients of the crime is that the property was bought or received “upon some consideration.” In our view of the statute the essential ingredient of the crime is that a party has bought or received stolen property knowing it tO' have been stolen. That part of section 618 of the Revised Penal Code material for the purpose of this decision reads as follows: “Every person who- buys or receives in any manner upon any consideration any personal property of any value whatsoever, except as hereinafter provided, that has been stolen from any other, knowing the same to have been .stolen, * * *” is guilty of the offense. We are inclined to take the view that the words “upon any consideration”'
It is further contended by the defendant that the court erred in admitting in evidence the testimony of witnesses tending to establish the fact that two horses, exchanged by the defendant for the horses obtained from the witness Morgan, were stolen, and in not striking out .all of the evidence received on that subject. On the trial evidence was introduced tending to prove that the defendant' at the time he purchased the 17 horses of Morgan, giving therefor the two horses he then l^ad and $100 in money, knew that the two horses that he transferred to Morgan were stolen at. the time he transferred them to Morgan. This evidence seems to have been introditced and admitted for the purpose of showing -the inadequacy of the consideration paid by the defendant, and for that purpose it was clearly competent. If the defendant knew the horses he gave in exchange as paid consideration for the 17 horses purchased of Morgan were stolen property at the time he transferred them to Morgan, they could .not have been of much value to the defendant, and it was competent therefore, for the state to show the fact that these horses were known by the defendant to have been stolep horses at the time he transferred them to Morgan. 10 Ency. of Ev. 671; Cohen v. State, 50 Ala. 108; People v. Hertz, 105 Cal. 660, 39 Pac. 32. The evidence sought to be stricken out by the defendant included his own admission to witness Foster, in effect, that he knew that one of them had been stolen, but thought that one of them was straight. Much of the evidence, however, sough,*,
It is further contended by the defendant that the court erred in excluding a paper purporting to be a bill of sale from Morgan Jo the defendant of the 17 horses alleged to have been received by the defendant, but the court was clearly right in excluding this paper. It was not proven by any person present to have been signed by Morgan, and Morgan testified that he had no knowledge of the paper, and never signed it.
On the ,trifil one John Williams, a witness for the defendant, who had also been a witness for the defendant on the preliminary hearing before the justice, in his cross-examination before the trial court, was interrogated as to many of the answers given by him before the committing magistrate, and it was sought by the state to discredit and impeach him by showing contrary statements made by him on the preliminary examination. The committing magistrate was sworn as a witness to testify as to what was stated by Williams in his testimony before him on the preliminary examination for the purpose of impeaching him. It is contended by the defendant that the testimony of the committing magistrate did not tend to impeach the witness or show that he had made contrary statements as to any material fact but that was a matter, however, for the jury, and we think the court committed no error in permitting the state to prove by the magistrate the testimony as given before him by the witness Williams, and whether or not there was a conflict in the evidence was not for the court to determine, but' for the jury. The contention that the testimony was irrelevant and immaterial is clearly untenable, as the question as to the value of the horses was, as we have seen, material for the purpose of showing the knowledge of the defendant .as to their (being stolen property. ' ' '
It is contended.by the defendant'that the judgment should be reversed for the reason that the statement, made by the state’s at-
It is further contended that the court erred in charging the jury, of its own motion, “It does not matter who stole the property.” This instruction, however, was clearly correct. The question for the jury to decide in this case, was whether or not the defendant had purchased or received stolen property described in the information dm,owing the same to have been stolen, and although it was alleged in the information that certain parties named therein had stolen the property, this allegation was not material and may be properly treated as surplusage, and the fact that the state had
It is further contended by the defendant that the verdict of the jury was insufficient, and the judgment should be reversed for the reason that it failed to find the value of the property alleged to have bought or received by the defendant, but in our opinion this contention is untenable. The allegation in the information is that the property was of the value of $1,200, and the jury found by its verdict that the defendant is guilty as charged in the information, and the value as proven on the trial, both by the witnesses for the state and for the defense, was greatly in excess of $20. Du Bois v. State, 50 Ala. 139; State v. Colwell, 43 Minn. 378, 45 N. W. 847; State v. White, 25 Wis. 359; Com. v. Butler, 144 Pa. St. 568, 24 Atl. 910. We do not wish to be understood, however,
We have not' overlooked the other errors assigned, but in our opinion they do not merit a separate discussion, as the case seems to have been fairly submitted to the jury by the court, and the evidence was clearly sufficient, in our opinion, to warrant the jury in finding the defendant of the offense as charged in the information.
Dissenting Opinion
(dissenting.) I concur in the foregoing conclusions, except those relating to the remarks of the state’s attorney and court as to the reputation of the places mentioned by the former. In my opinion there is nothing in the record to overcome the presumption that such remarks were prejudicial to the accused. Because of such remarks, I think the judgment should be reversed.
The judgment of the court below and order denying a new trial are affirmed.