229 N.W. 373 | S.D. | 1930
Lead Opinion
This case is 'before us on rehearing. The former opinion is reported in 54 S. D. 552, 223 N. W. 943. Therein the trial court was reversed for admitting evidence of the conduct of accused following the homicide. Such evidence covered the conduct of accused on the same day but subsequent to the shooting of Wasson and involved other criminal acts which appeared to this court to be wholly disconnected from the act of accused for which he was on trial. The evidence is fully set out in the first opinion, and the reader is referred to that opinion (223 N. W. 943) for the facts.
On rehearing the Attorney General argues that such evidence has a direct bearing upon the act for which accused is on trial; that the conduct of accused during the afternoon both before and after the homicide discloses a mental state that may be shown in order that the homicidal act may be understood and properly characterized. The fact of the killing by accused, the manner of its accomplishment, and the circumstances immediately surrounding the act, are with the exception of a few details conclusively shown by the state and are corroborated by accused. Accused admitting the homicide says it was justifiable in self-defense. He would have it appear from the circumstances immediately surrounding the homicide that he was innocently within the inclosure surrounding Wasson’s lands and that Wasson came to him, provoked a quarrel, and attacked him with a knife, forcing him in self-defense to take the life of Wasson. Whether Wasson drew a knife or made any attack is in dispute. As bearing on the quetsion of who was the aggressor and the intent of accused in killing deceased, it is claimed the conduct of accused from the time he took the gun (a sixshooter) to the time of his arrest shows that accused left his home with the deliberate plan of gunning for a number of his neighbors, and that proof of such plan has a direct -bearing in proof of the character of the homicide, and was therefore competent. In our former opinion v?e concluded the conduct of accused subsequent to the homicide did not tend to prove the intent and mental attitude of accused at and prior to the homicide and was therefore incompetent and prejudicial to accused tending only to show his quarrel-32 — Vol. 56, s. D.
In State v. Deliso, 75 N. J. Law, 808, 69 A. 218, 221, the court says: “The human passions that underlie the malice known to the law do not necessarily arise at the instant of crime. They have a natural history of their own — a birth, a growth, and a maturity. Hence the distinction to be borne in mind between evidence that traces this natural phenomenon to its criminal debacle and testimony as to isolated and entirely unconnected transactions is that the latter merely tends to show the criminal character and predisposition of the accused, whereas the former has a direct relevancy to his state of mind when the given offense was committed.”
It is the Attorney General’s contention that this evidence here considered belongs to the former class and directly proves accused’s state of mind at the time of the homicide. He says: “This was defendant’s busy afternoon. He started out after dinner, not to get a rabbit or find the colt, but to conduct a campaign. His plan was to settle with his neighbors with whom he had differences or against whom he bore grudges. As he stated to Grotta he was ‘not going to run over any more.’ He carried his revolver all day to aid in the execution of his plan. He was looking for trouble. He had ‘run amuck.’ His plan was an aggressive one. He sought to provoke trouble. The testimony objected to was all material and relevant, therefore, as showing the state of mind, motive, design, malice and intention of the defendant in the commission of the crime charged. It all tends to show the degree of the crime charged and shows that the homicide was committed without justification. Also, that the difficulty was brought about by the defendant so that he may not urge any right of self-defense. The assaults were in quick succession, a series, pails of one design, executed in one campaign, with one mind and purpose.” Does the evidence tend to prove such a state of mind ? Accused thought it worth
The principle upon which this evidence is admissible is supported by the following cases: O’Brien v. Commonwealth, 115 Ky. 608, 74.S. W. 666; Whitney v. Commonwealth, 74 S. W. 257, 24 Ky. Law Rep. 2524; State v. Deliso, 75 N. J. Law, 808, 69 A. 218; People v. Selby, 198 Cal. 426, 245 P. 426; People v. Walters, 98 Cal. 138, 32 P. 864; Hoxie v. State, 114 Ga. 19, 39 S. E. 944; Little v. State, 39 Tex. Civ R. 654, 47 S. W. 984; People v. Craig, 111 Cal. 460, 44 P. 186; Bowman v. United States, 50 App. D. C. 90, 267 P. 648; Milton v. State, 40 Fla. 251, 24 So. 60; State v. King; 111 Kan. 140, 206 P. 883, 22 A. D. R. 1006; State v. La Rose, 54 Or. 555, 104 P. 299; Wigmore on Evidence, vol 1, § 363.
The court gave an instruction- as follows: “In this case the defendant, conceding that he shot the deceased, the burden is upon him under the law of this state, to show that this act of his was justifiable homicide, and in case you find that it was not justifiable homicide, then it would be your duty to- convict the defendant of either murder or manslaughter in the first or second degrees as hereinafter instructed.” The giving of this instruction is assigned as error. It is evident the instruction was intended to cover the law as expressed by section 4900, R. C. 1919, providing: “Upon a trial for murder, the commission of the homicide * * * being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter or that the defendant was justifiable or excusable.” The instruction, however, is broader than the statute and fails to include the exception “unless the proof on the part of the prosecution tends to show that the crime committed, only amounts to manslaughter or that the defendant was justifiable or excusable.” In State v. Yokum, 11 S. D. 544, 79 N. W. 835, an instruction intended to embody the law expressed by section 4900 was approved and this court held that the accused must prove the affirmative defense by a preponderance of the evidence and that it was not enough if his proof raised only a reasonable doubt as to his defense. In State v. Wilcox, 48 S. D. 289, 204 N. W. 369, 372, this court said: “In a criminal case the burden of proof rests upon the prosecution at every stage of the trial. While it is incumbent upon the defendant to show justification where his defense is ‘self-defense,’ this does not mean that he must prove his defense beyond a reasonable doubt, but only that .his evidence must -be sufficient to create or leave in the minds of the jury a reasonable doubt as to whether he was justified in taking the life of the deceased. The portion of the opinion in State v. Yokum, supra, holding to the contrary is hereby expressly overruled.”
Of the assignments covering a refusal to give requested instructions we have already disposed of one in our former opinion. The others have been carefully examined. Two upon which stress is laid by appellant pertain to the individual responsibility of each juror, and to the weight to be given to a witness if he has knowingly testified falsely on any material fact. As to these we find the court instructed fully and properly concerning these matters and therefore did not err in refusing the instructions requested.
We have carefully considered all assignments and find no prejudicial error.
Dissenting Opinion
(dissenting). We think the court below erred in admitting testimony of subsequent and unrelated offenses, and in giving the instruction previously condemned by this court in State v. Wilcox, 48 S. D. 289, 204 N. W. 369. These points have been presented on appeal ’by proper assignments, and upon consideration of the entire record we are unable to arrive at the conclusion that such errors were without prejudice. 'We are therefore of the view that the correct result was reached in the former opinion in this case (54 S. D. 552, 223 N. W. 943) and are unable to -concur with the majority in the present opinion.