22 S.D. 584 | S.D. | 1909
This cause comes before the court upon appeal from a judgment of conviction in the trial court, and from the order refusing a new trial. The defendant was informed against upon the charge of an assault with a dangerous weapon with intent to do bodily harm to the persons of Christ 'Dutterman and Pat Grady. While there’is some dispute as to the facts leading up to the assault charged, yet the following appears fully supported by the evidence: The defendant came into the town of Draper, S. D., on September 20, 1906, drank more or less intoxicating liquors, and became quarrelsome, and had a quarrel with a party by the name of Drum. One Pat McDonald, claiming at that time to be a constable and who. was probably in fact a constable, pretending to act as such constable, parted <the defendant and Drum, and trie 1 to get the defendant to. go- home. This the defendant refused to do and afterwards followed Drum up, and McDonald went after him, and, finally, after trying to get the defendant .to behave himself and not succeeding, he called to his assistance said Dutterman and Grady, tied the feet and hands o.f defendant, placed him in defendants wagon, and said Dutterman and Grady took him home. There is no question but what considerable force was used in
One of the m'aip. contentions of the defense upon this appeal is that the court did not fairly instruct the jury upon the question of justification. The court instructed along this 'point to some considerable extent. Taking the instruction as ¡a. whole, we deem it a fair statement of the law as to justification in a case where any such instruction was necessary. But, in view of the fact that this shooting was done, if at all, some considerable time after the defendant had been misused, if he ever was mistreated, and we do not think he was, the defendant was clearly unjustified in shooting at these men if he did so shoot at them, and we believe that the court would have been fully justified in taking this question entirely from the jury. Therefore the defendant cannot complain of the instruction of the court along this line, even if there -had been error in it.
There were several exceptions taken to the rulings upon the admission of testimony; hut, as we consider them, there was absolutely no merit in any of these exceptions, and we will not take the time to review the same. The defendant asked for several instructions, which tvere 'refused. These instructions were along the line of what would justify the defendant for the shooting, and what we have said above fully covers this point: First, the in-structipns were ample as given; and, second, the defendant was not entitled to 'any instructions in this phase of the case.
The defense strenuously urge that the court erred in not charging the jury that they might find the defendant guilty of simple assault. It appears from the" record that- the defendant never asked
The appellant urges an error, in that he claims that the state’s attorney advised the jury that the 'defendant would probably receive only a short jail sentence, as the court had the right to sentence him for a few days only; and that, as it appears from the record that the jury coupled their verdict with a recommendation of mercy, and the verdict being followed by a penitentiary sentence, it is quite apparent that the jury would ’not have f.ound a verdict of guilty if they had not been influenced by the remarks of the state’s attorney. We are very much surprised that counsel would urge this objection in this court when there is nothing in the record to show that such statement was made by the state’s attorney, and, furthermore, we wish to state that this court presumes that the trial jury will always do its 'duty, when its duty is plain. Therefore in this case, no matter what they supposed the sentence would be, they would have found .the defendant guilty because they wouid not have been justified in reaching any other verdict under the evidence in this case.
It therefore appearing that the defendant had a fair trial, and that there was no reversible error apparent in the record, the judgment of the lower court and the order denying a new trial are af firmed.