21 S.D. 612 | S.D. | 1908
Having been convicted of murder and sentenced to imprisonment for life, defendant brought the record of such conviction to this court for review by writ of error.
It was charged that the defendant killed an unknown man in the city of Mitchell on July i6„ 1906, either with a premeditated design to effect the death of the person killed, or without such design while committing the crime of robbery. The state was permitted, after having introduced evidence strongly tending to establish the commission of the alleged crime, and tending in some degree, to connect the defendant with its commission, to show an oral confession made by the defendant in the presence of the sheriff and state’s attorney. Before considering the competency of this confession, a matter of procedure deserves passing notice. Unless it is unavoidable, testimony relating to an alleged confession should never be heard by the jury before its admissibility has been determined. Of course, if the alleged confession be found to be admissible, failure to exclude the jury during the prelim
Timely and proper objections were interposed when the confession was offered, but no motion was made to have it stricken out or withdrawn from the jury. Its competency, therefore, depends on the evidence as it stood when the confession was received. As to its competency and the confession itself, the sheriff testified substantially as follows: “Q. You may state, Mr. Cook, whether in that talk you had with him any reference was made to this alleged crime? A. Yes, sir. Q. Now, I will ask you, Mr. Cook, whether that talk was voluntarily made by the defendant? A; It was. The court: You can cross-examine him. By Mr. Simons : At the time this conversation was had I did not say to Mr. Vey that I would do my part in taking care of him if he would make such statement. I did not say to him at that time that I woul-d do all I could for him. I did not say that I would do whai I could to make his sentence light if he made a confession. I did not at that time tell Mr. Vey that it would be easier for him if he confessed. I did not at that time make any statement to Mr. Vey in which I said I would do what I could to help him if he made such statement. By the Court:. Q. You may state whether you made any promise or any threat to the defendant regarding these statements? A. No, sir. Q. Held out any inducement to him? A. No-, sir. By Mr. Spangler: Q. Mr. Cook, where and when was this-statement made? A. He sent for me to come down to the jail, that he was nearly crazy, that he couldn’t stand it any longer. I went down in the jail and he said: T want to tell you — ’ He says: T want to tell you every
Defendant’s confession and admissions having been properly admitted; there was no> error in admitting a certain coat and handkerchief found by the sheriff at a place to' which he was directed by the defendant.
It is contended the court erred in admitting a letter written by the defendant while in jail, addressed to his father and mother, and delivered unsealed to the sheriff for mailing, wherein there was an implied admission of his participation in the crime with which he was charged, over defendant’s objection that “no proper foundation has been laid,” that “it is incompetent, immaterial, and in no way tending to blind the defendant.” That the letter was written by the defendant clearly appeared. That it tended to establish defendant’s participation in the alleged crime is apparent from its contents. So it is difficult to understand why defendant’s objections, as stated in the record, were not properly overruled. But, assuming such objections presented, the contention now urged, namely, that, by reason of the letters’s retention and use in evidence, defendant was compelled to give evidence against himself in violation of the constitutional inhibition (Const. S. D. art. 6, § 9), such contention is clearly untenable. Papers and other articles voluntarily produced by the accused or taken from his room in his absence and without his knowledge may be put in evidence against him without violating his constitutional rights, as he is not thereby compelled to give evidence against himself. 12 Cyc. 401. It Iras been held: “If a prisoner, while confined in jail
Finally, it is contended the court erred in refusing to charge the jury as requested by the defendant. The only foundation for this contention found in the record is the following statement: “Before the jury had retired to consider the evidence, the defendant requested the court in writing to charge the jury that they may find the defendant guilty of any minor offense necessarily included in the offense of murder. (Request refused because not presented in time. Defendant excepts.)” If, for any reason, notwithstanding the one assigned by the trial judge, this request was properly denied, the judgment jshould not be reversed. At least two such reasons exist: (1) The language of the request as disclosed by the record in this court would have been meaningless if read to the jury without modification, and a request to charge should always be refused unless the form of the proposed charge is such that it may read without change. State v. Hellekson, 13 S. D. 242, 83 N. W. 254. (2) Where, as in this case, the offense charged is not divided into degrees, the court is not required to charge the jury as to an offense that might be included in the charge made, but which the evidence would not warrant. State v. Kapelino (S. D.) 108 N. W. 335. Under the evidence defendant was either guilty of the crime charged or not guilty of any offense. The judgment of the circuit court is affirmed.