16 S.D. 62 | S.D. | 1902
An information was filed by the state’s attorney of Charles Mix county, charging the plaintiff in error, to-' gether with Cyrus House and D. M. Wilcox, with the commission of the crime of grand larceny by stealing 29 head of live stock described in the information, and alleging that said live stock was the property of one D. N. Murphy, and was then and there in the possession and under the control of said Murphy. The piaintiff in error was convicted of the crime charged, and Cyrus>House, jointly tried with him, was acquitted. The errors assigned are: (1) Misconduct'd the jury; (2) error of the court in overruling the motion of the plaintiff in error to strike out the evidence of D. N. Murphy as to the ownership of the property; (3) that the court erred in its instructions to the jury; (4) that the court erred in refusing to give a certain instruction to the jury requested by the plaintiff in error.
A motion for new trial was made and one of the grounds upon which the same was based was that the jury was guilty of misconduct while deliberating upon their verdict by which a compromise verdict was returned finding the plaintiff in error guilty, and by reason thereof a fair and due consideration of his case/was prevented. In support of this motion an affidavit was filed, by the plaintiff in error, in which he states, in sub
It is contended on the part of the plaintiff in error that the facts stated in his affidavit were not denied, and that the affidavits on the part of the state only state generally that the verdict was not the result of a compromise, and that the case was fairly and honestly determined after reviewing the testimony with a general discussion of the same; that in the absence of such specific denial of the facts set out by the plaintiff in error in his affidavit they must, for the purpose of this case, be taken as true, and that, if true, they disclose such misconduct on the part of the jury as entitled the plaintiff in error to a new trial. ■ SectionV450, Comp. Laws, provides, “The court in which a trial has been had upon an issue of fact, has power to grant a new trial, when as verdict has been rendered against the defendant by which his substantial rights have been prej -
As above stated, the property alleged to have been stolen was charged in the information to be the property of one D. N. .Murphy, employed by the South Dakota Cattle Company as its foreman to look after the herd of cattle owned by said company in this state, The authority of said Murphy is shown by
But, independently of the rule above quoted, it is contended on the part of the state that this case is governed by section 7246, Comp. Laws, which reads as follows: “When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in
It is further contended on the part of the plaintiff in error that the court erred in instructing the jury that the possession of the property recently stolen is presumptive evidence that the person in whose possession the same is found is the thief. Counsel f@r the plaintiff in error frankly admits that the instruction of the court contained a correct proposition of law, but contends that it did not apply to this case, for the reason that there was no evidence that either House or Vincent was ever in possession of the cattle. An examination of the record, however, satisfies us that the learned counsel is in error in his last statement. We are of the opinion that there is evidence, not only as disclosed by the amended abstract on the part of the state, but as shown in the abstract of the plaintiff in error, tending to prove such possession, in the view we take of the case, it will not be necessary to discuss further this alleged error.
It is further contended on the part of the plaintiff in error
Upon a careful review of the case we find no error in the record, and the judgment of the court below is affirmed.