File No. 6847 | S.D. | Mar 16, 1931
Appellant was jointly charged with one Hanley and one D'riscoll with the robbery of a bank at Huron. He was granted a separate trial, and from the judgment on conviction, and from the order denying motion for new trial, he appeals. Opinion has this day been filed affirming the conviction of Hanley and Driscoll. State v. Hanley and Driscoll, 235, N. W.
Appellant assigns as error four instances of alleged misconduct of the state’s attorney. In the first instance counsel for defendant as well as the state’s attorney, participated in vehbal sorties across the counsel table, and appellant did not request the trial court for an admonition. In the third instance there was neither objection nor exception, no request for admonition, nor prejudice shown. In the fourth instance, the court should have, on its own motion, promptly and unmistakably put an end to the state’s attorney’s comments on the evidence while appellant’s counsel was making an objection. But the court did sustain the objection, and Mr. Wag-goner of appellant’s counsel, not only did not ask the court to admonish the state’s attorney, but manifested- some willingness and' ability at admonishing the state’s attorney himself.
In considering the second instance of assigned misconduct, it should be borne in mind that the big question at the trial was the identification of the defendants as those who robbed the bank. Lois Gannaway had testified she was leaving the bank with her arms full of parcels just as appellant and another were about to enter. She hesitated at the door, expecting appellant to open it for her. When he did not do so she opened1 it and held it open while appellant and his companion entered. -She noticed him particularly because he was not gentlemanly enough to open the door for her. She noticed him also because he was pretty good looking.
“Q. I didn’t ask you that. I asked you if you did not testify 'before that the only reason you recognized Mr. Shea at that time was because he was no gentleman. A. I testified that I noticed him because he wasn’t gentlemanly enough to open the door for me.
“Q. Yes, that’s what I mean. And' that was the only reason that you recognized him down in St. Paul, didn’t you ? A. That I testified that in St. Paul?
“Q. Yes. A. What was the question?
“By Mr. Plowes: That is objected to, no' foundation being laid as to time or place, where it was. 'Where she testified, who was present.
“By the Court: Well the form of that question is—
“By Mr. Waggoner: Well, if they want to take all this time we will make a record.
“By Mr. Howes: That last remark is objected to as misconduct of counsel.
“By the Court: Yes, the court considers that misconduct of counsel.
“By Mr. Howes: Move that it be stricken from the record.
“By the Court: It may be.
“By Mr. Kelley: We take an exception to the court’s ruling.
“By the Court: The court takes exception to the remarks of the attorney.
“By Mr. Waggoner: We take exception to the remarks of the court.
“By the 'Court: All right, you may proceed.”
Both Mr. Waggoner and Mr. Kelley were representing appellant at the trial. M'r. Howes was state’s attorney. The ruling of the court in striking from the record Mr. Waggoner’s remark, “Well, if they want to take all this time we will make a record,” was ^ertainly not prejudicial to appellant, nor is error assigned thereon. The remark of the trial court, “Yes, the court considers that misconduct of counsel,” may or may not have been fully justified, depending upon the meaning and effect of Mr. Waggoner’s remark last above quoted. Certainly it was not reversible, error.
The same instruction was requested and refused and the same instruction given under the maxim, “Falsus in uno, falsus in omni