State v. Uren

162 N.W. 745 | S.D. | 1917

WHITING, J.

[1] Appellant, convicted of the crime of grand larceny, has appealed from, the judgment of conviction and from-an order denying a new trial. The record before us contains numerous assignments of error, but we shall treat all assignments abandoned except such as have been discussed by the appellant in hi® written argument.

[2] Appellant ¡assigns that the evidence was insufficient to establis'h the • venue of the crime. The crime was laid in Butte county, S. D. The property alleged to have been stolen was two horses. The evidence showed that the owner of the horses lived in Butte county and that these horses:, with others, ranged in Butte county. It was physically possible for these horses to¡ have been Outside of Butte county at the time of their larceny because they were stolen while out ¡on the range, but there was sufficient evidence to justify the jury in finding that the horses were in Butte county when taken.

[3,4] Appellant complains of one of the instructions given by the court; but, according to the additional statement in respondent’s brief, no. timely exception to. such instruction was taken. In the -absence of a reply brief, the additional statement will, in accordance with the repeated holdings of this court, be taken as a verity.

[5, 6]’ Appellant complains of misconduct on the part of- the state’s attorney during the -trial of this -cause. Appellant, in his assignments and in his. .argument, makes reference to certain alleged misconduct on the part -of the state’s attorney in his closing argument. No- record of such alleged misconduct appears in the statement of the record in the printed record herein, and it is therefore not before this- court. Appellant, in his written argument, makes certain statements of fact for the apparent purpose of showing the prejudicial nature of certain statements which it is claimed were made by the state’s attorney ¡during the examination of a certain, witness. These facts 'do> not appear to have ever been established upon the trial or in any other way made a part of the record herein. There is certain alleged misconduct which does appear in the record herein but is of a nature that to< our minds could not in any manner have prejudiced; the appellant. In fact, at least one of the statements oif the state’s attorney complained of by appellant was fairly called out by a prior statement made by counsel for appellant.

• Appellant having failed to show wherein the record presents any prejudicial error, the judgment and order appealed from are affirmed.