159 N.W. 101 | S.D. | 1916
“In this case -it is not ‘disputed that the property was stolen from Gus Seaman. The real question at issue for you to determine is whether the defendant Herman Sonnenschein took, or assisted in taking, the property.”
This was excepted to on the ground:
That it “was incumbent upon the state to prove every material charge in the information, beyond all reasonable doubt, and that it was error for the court to charge that any question of fact had been proven, all questions of fact being for the jury to determine.”
It is true, of course, that it is incumbent upon the state, in a criminal prosecution, to prove the guilt of the defendant beyond all reasonable doubt, but -this 'does not bar the defense from admitting any material fact nor the court from assuming the existence of a fact admitted by the defendant. In this case it was admitted by the defendant that the cattle described in the information were stolen from Gus iSeaman. The case was tried by the defendant, as well as the state, upon the theory that the cattle had been stolen from Gus .Seaman. The theory of the state was that the cattle were stolen by Ed 'Carr, the defendant, Sonnen-schein, and another, while it was the theory of the defense that
“It was not the contention of the defense that these cattle were not stolen. We admit that. But we shall show you that Herman Sonnenschein was in no way connected with the theft.’’
And again:
“Vve do not deny these cattle were 'stolen. Ed Carr stole these cattle, and now he is trying to save himself by swearing it on Sonnenschein.”
In view of these admission, the defendant was in no wise prejudiced by the instruction complained of. With these admissions before the jury, they were not called upon to determine whether the cattle were stolen or not; that was a conceded fact. The only question for the jury to determine was whether the defendant was a party to the -theft. It has already been held by this court that it is not error to give an instruction in a criminal case assuming the existence of facts that have been proved by undisputed evidence. State v. Shepard, 30 S. D. 219, 138 N. W. 294; State v. Kinney, 21 S. D. 390, 113 N. W. 77.
“Under the law the defendant in a criminal case is permitted to go upon, the witness stand, and testify in his own be-' half, and the fact alone that he is the defendant is not evidence sufficient to impeach or discredit his testimony, but in arriving at your verdict and in determining what weight and credit you will give to his testimony you have the right to take into consideration his interest in the result of this suit, and that he is the defendant on trial, testifying in his own behalf. In other words, the interest of the defendant in -the result of this -trial is a matter to be taken- into- consideration -by the jury — what weight and credit ought to be given to- his testimony.”
Defendant excepted to this instruction for—
“the 'reason that it especially pointed out and commented upon-the testimony of the defendant and distinguished such testimony from the testimony of other witnesses and announced a different rule applicable thereto.”
“The fact alone that he is the defendant is not evidence sufficient -to impeach or disregard his testimony.”
This cured any error there might otherwise have been in the instruction.
“The ter-m 'reasonable doubt’ is pretty well understood, but not easily defined. It Is no- mere -possibility of a doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the defendant, because everything relating to human 'affairs ■and depending upon moral evidence is open to some conjectural or imaginary doubt, and because absolute- certainty is not required by the law. It is not such a doubt as one might conjure- or hatch up in order to -acquit a friend without any reason -therefor, but it must be a substantial do-u'bt, and one which wo-uld ordinarily impress the judgment of a prudent man in the graver and more important affairs of human life. A reasonable 'doubt which entitles a defendant in a 'criminal case to- -an acquittal is a doubt of guilt reasonably arising from all the evidence in the case, or- it may*600 arise from lack of evidence in the case, and it must be such a doubt as the juror is able to give a reason for.”
Defendant excepts to this instruction for the reason that it places upon the defendant the burden to furnish to each juror a reason, and that a juror may -have a reasonable doubt, although unable to give a reason therefor. This instruction is, in substance, the same as an instruction that was approved by this court in State v. Fullerton Lumber Co. et al., 35 S. D. 410, 152 N. W. 708. We do not believe this instruction is subject to the criticism made by defendant or that the defendant was prejudiced thereby.
“The court further instructs the jury that the presumption of innocence with which the defendant is clothed 'by law at the outset of a criminal trial only continues with the defendant until the contrary is proven beyond all reasonable doubt, and in this case if the jury believe from the evidence beyond all reasonable doubt at this stage of tire trial that the defendant is guilty as charged in the information, then the presumption of innocence with which the law clothed the defendant at the commencement of this trial has been overcome, and it will then be your duty, as jurors in this -case, to finidl the defendant guilty.”
This instruction was excepted to on the ground -that it, in effect, advised the jury that the presumption -of innocence was limited, and that it -did not continue with the defendant throughout the entire trial. While this instruction, taken alone, might tend to mislead or confuse the jury upon the question of the presumption of innocence, we 'do not believe it has that effect when taken in -connection with the entire instruction of the court. In addition to the above-quoted instruction, the court instructed the jury upon the presumption of the defendant’s innocence as follows:
“The rule of law in a -criminal case -is that the defendant is presumed to be innocent until he is proven guilty beyond a reasonable -doubt. The court instructs you in this case that the law raises no presumption against -the defendant, b-ut every presumption is in favor of his innocence. He is not required to prove himself innocent or put in any evidence at all upon that subject, and this presumption of innocence abides with him- and! follows*601 him throughout the trial of the case until the evidence convinces you to the contrary 'beyond all reasonable doubt. In order to convict the defendant of the charge contained in the information, every material fact necessary to constitute such offense must be proved beyond all reasonable doubt, and if the jury or any member of the jury entertain any reasonable doubt upon any single fact or element necessary to constitute such criminal offense, as heretofore defined, then it would be your duty to give the defendant the benefit of such doubt and acquit him.”
The only criticism to which this instruction is subject is that it is indefinite as to the duration of the presumption. But in considering the correctness of -instructions to the jury, the entire instruction must be considered together, and the various portions thereof considered -with reference to the other portions. It is true that the presumption of innocence with which a defendant in a criminal trial is clothed by the law accompanies him -throughout every stage of the trial, but when -the entire instruction is taken together, we do not believe the jury was given to understand or could reasonably infer the presumption of innocence existing in favor of the defendant was to be regarded as overcome by the evidence until the case was finally submitted to- them, or that the rights of the defendant were -prejudiced thereby. It is not out of place, however, at this time to say that, in all criminal trials, the tri-al court should make clear to the jury the importance to the defendant of the presumption of innocence existing in his favor, and also to- make it -clear to them that this presumption accompanies the defendant throughout every stage of the trial, and should be taken into consideration by them, along with the evidence in the -case, in arriving at their conclusion as to- the guilt or innocence of the defendant.
“If you find- from: the evidence, beyond a reasonable doubt, as the court will hereinafter instruct you, that the -defendant Herman Sonnemsc-hein, either alone or with some other person, took and carried away this -property, -that is, this stock or any part thereof, then he will be guilty of the crime of grand larceny -as charged in the information.”
This is excepted to- for the reason, as claimed by defendant,
“There are three elements of grand larceny; First, that the property be stolen; second, that it be the property of another person; third, that it be accompanied by fraud and stealth.”
The question of ownership has already been considered.
This disposes of the case, and finding no prejudicial error in the record, the judgment and order appealed from are affirmed.