197 N.W. 234 | S.D. | 1924
Appellant was convicted in the municipal court of Sioux Falls upon information charging that- he prevented one Katherine Kline from appearing as a witness in a certain case then pending in said court against one August Seubert, the said Katherine Kline being a material and necessary witness in the said case. Upon appeal to the circuit court of Minnehaha county the venue was changed to Davison county, where appellant was again convicted.
Appellant demurred to the information, on the ground that the facts alleged do not bring the case within the provisions of the said section. The section, .so far as material, here, reads as follows:
“Suppressing Evidence. Every person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or producing therein any book or paper, or other matter or thing which might be evidence, or for procuring the attendance or testimony of any witness therein. * * * ”
This contention is based upon the use of the word “for” in the fifth line of the section. The use of the word “for” in this line renders the phrase in which it is used meaningless, and it is apparent from' a casual reading of the section that the word “from” was intended to< be used in the place of “for.” With “from” substituted1 for “for” the entire section .is intelligible, and that the word, “from” was intended to be used, and that the use of “for” is a typographical error is apparent from an examination of this section, where it appears in earlier publications. It appears as section 186 in the Penal Code of 1864-65, as section 187, P'enal Code, 1877, as section 6387, Compiled Laws 1877, and as section 193 in Rev. Pen. Code 1903, in all of which “from” is used instead of “for.”
Appellant next contends that the information is insufficient because it does not allege that the witness had been subpoenaed to attend the hearing of the said case. But this is not necessary. To maliciously prevent a party to an action from procuring the attendance of bis witnesses is sufficient under the statute.
It is next contended by appellant that the verdict of guilty is by a jury of eleven men, one of whom was not sworn as a juror, and for this reason he is entitled to a new trial. This
“released and discharged from the jury by the court and that such discharge and release was final, and that the juror after returning and now- sitting on the case is not a juror at all, is not under oath, having been released from his oath, and is an alien party to this case.”
The motion was. denied, and error is assigned. This assign
Appellant was entitled to have the jury that tried his case sworn and impaneled in the manner provided by law, and, had the juror not been sworn at all, even though as the result of oversight on the part of the court and counsel, there, of course, would be merit in appellant’s position. But this juror had been regularly sworn, and there is nothing to indicate that he at any time felt himself released from the obligation of his oath, taken at the beginning of the trial. ' There is no contention that he violated his oath in any manner, and there was no error in overruling appellant’s motion.
After the verdict had been returned, appellant moved to arrest the judgment and dismiss the case on the ground that the verdict had been returned by a jury of eleven men only. This, question is not new to the courts, nor are the conclusions reached by the various courts harmonious. Section 6, art. 6, of our Constitution guarantees to every man accused of crime the right of trial by jury, and, of course, this means a jury of twelve men, sworn and impaneled in the manner provided by law. But, having consented to have his case submitted to a jury of eleven men only, his present position can be justified on no other ground than that a constitutional right cannot be waived and that the state is bound to see that his case is tried by a constitutional jury, notwithstanding his consent to submit his case to a jury of less than twelve men. In support of his position appellant cites Cooley’s Constitutional Limitations (7th Ed.) 458, 459; Dickinson v. U. S., 159 Fed. 801, 86 C. C. A. 625; Hill v. People, 16 Mich. 351; Allan v. State, 54 Ind. 461; Jennings v. State, 134 Wis. 304, 114 N. W. 492, 14 L. R. A. (N. S.) 862. Dickinson v. U. S., supra, appears to be a leading case in support of appellant’s position, and the cases on the subject are cited and reviewed, but it may be observed that to the majority opinion in this case is appended a dissenting opinion by Judge Aldrich in which he maintains the opposite view, which seems to us to be based upon a much better line of reasoning, and1 is supported by a more formidable array of authorities. We can see no more reason why a person accused of a crime cannot waive his right to be tried by a jury of twelve and submit his case to a jury of a less number, than there is why
In State v. Borowsky, supra, 11 Nev. 119, the court held that defendant was estopped from raising the question.
“To hold otherwise would seem to involve the conclusion that if a verdict of guilty does not convict, a verdict of not guilty does not acquit, and that in the latter case the defendant might be tried again, perhaps after his witnesses had gone beyond his reach, and in a case perhaps where the very reason of his waiving a full panel of jurors was to prevent a postmonement of his trial and the loss of important testimony. These considerations, it is true, do not meet the argument, -but they indicate the unjust and harsh consequences involved in the position contended for and the motives which miay legitimately actuate a court in inclining to an opposite conclusion.”
There was no error in denying appellant’s motion.
A considerable number of assignments are based on the rulings of the trial court in the rejection of certain testimony offered during the trial. These assignments have all been examined, and, without taking them: up in detail, we are satisfied that appellant was in no wise prejudiced by any of these rulings.
It appears from the record that there -were a considerable number of women in attendance upon the trial. 'Counsel for appellant asked one of the veniremen, upon his examination'touching his qualifications to serve on the jury, if the presence of the women and the display in the courtroom would have any influence
“If the attorneys for the defense wish to insult the women in the audience they may do it at their own risk. The ladies are entitled to be present in the courtroom as well as the men.”
The women in the courtroom applauded this remark by clapping their hands. The court thereupon rebuked them for this, and admonished them not to repeat the demonstration. This remark made by the court is assigned1 as misconduct on the part of the trial judge, and it is claimed by appellant that he is prejudiced thereby. We find nothing whatever in the' record that justifies the remark complained of. It was improper and uncalled for. Counsel for appellant had said, nothing offensive nor shown a disposition to insult any one in the courtroom. But, on the 'other hand, we cannot see how appellant was prejudiced, as the remark of the court did not express any opinion as to the guilt or innocence of appellant, nor reflect upon his character, nor disparage him in the eyes of the jury. In fact, the remark was not aimed at appellant but rather at his counsel, and could not have influenced the jury in one way or the other. No question is raised as to the sufficiency of the evidence to prove appellant’s guilt, and there was no error in denying his motion for a new trial.
The judgment and order appealed from are affirmed.
Note. — Reported in 197 N. W. 234. See, Headnote, American Key-Numbered Digest, (1) Criminal law, Key-No. 13, 16 C. J. Sec. 28; (2) .Obstructing justice, Key-No. 11, 29 Cyc. 1336; (3) Jury, Key-No. 148(3), 24' Cyc. 371; (4) Jury, Key-No. 29(5), 25 Cyc. 153; (5) Criminal law, Key-Nos. 655(5), 1166% (12), 16 C. J. Sec. 2097, 17 C. J. Sec. 3637.
On question of consent and waiver to absence of jurymen in criminal cases, see notes in 43 L. R. A. 59, 14 L. R. A. (N. S.) 862 and 46 L. R. A. (N. S.) 38.
On questions relating to tbe procuring of one having knowledge of offense to leave tbe jurisdiction, see 33 L. R. A. (N. S.) 976.
On interference of or detention of witness as a crime, see note in 24 L. R. A. 439.