State v. Barnes

• Decision Date: 04 October 1910
• Citation: 26 S.D. 268,128 N.W. 170
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. TOM BARNES, Defendant and appellant.
• Court: South Dakota Supreme Court

26 S.D. 268, 128 N.W. 170 (1910)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v TOM BARNES,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Stanley County, SD

Hon. W. G. Rice, Judge

Affirmed

Gaffy & Stephens

Attorneys for appellant.

S.W. Clark, Atty. Gen.

J. H. Johnson, State's Atty.

Attorneys for the State.

Opinion filed October 4, 1910

WHITING, P. J.

Defendant was indicted jointly with one Oakes and one Zigler, and by said indictment charged with the crime of grand larceny, to-wit, with the theft of two horses belonging to one Muhlhausen. Oakes and Zigler pleaded guilty to the charge. Barnes pleaded not guilty, and also pleaded two former acquittals of charges against him in bar. The issues on all the pleas having been submitted to the jury, it returned a verdict against the defendant on all the pleas. A new trial was denied defendant after judgment rendered on the verdict, and defendant has appealed from such judgment and order denying a new trial.

A large number of assignments of error are found in the record; the most important questions under such assignments relating to the pleas of former acquittal. It appears undisputed that Oakes and Zigler on a night in the early part of December, 1908, stole five horses out of the pasture of one Devine, and that later during the same night, and at a place some five miles distant from the Devine pasture, they stole the two horses with the theft of which they and defendant are charged in the information in this case. It is the claim of the state that these thefts were in furtherance of a plan between Oakes and Barnes, under which plan Oakes was to steal horses and turn them over to Barnes for disposal. It appears that these seven horses were stolen near Ft. Pierre, in Stanley county, and within a couple of days thereafter delivered into the possession of Barnes at Forest City, in Potter county. It is the claim of the state that this delivery was in furtherance of the plan between Oakes and Barnes, and that, upon such delivery, Barnes paid Oakes and Zigler $100, and agreed to pay them $50 more. It was the claim of Barnes that he purchased said horses of Oakes and Zigler for $280 in ignorance that they were stolen, and he further denied the existence of any plan or agreement between him and Oakes, as claimed by the state.

At the January term of circuit court in and for Stanley county two separate informations were filed against Oakes, Zigler, and Barnes; one charging the larceny of the Devine horses, and the other being the information in the case now on appeal. Trial was had on the Devine information, and, under advice of the trial judge, the jury found Barnes not guilty. In March, 1909, an information was filed in the circuit court of Potter county against Barnes, charging him with the offense of receiving stolen property knowing same to be stolen, and the act charged being the receipt of the seven head of horses stolen by Oakes and Zigler from Devine and Muhlhausen, being the same horses with the theft of which Barnes was charged in the Stanley county informations. Trial was had in Potter county, and the jury found defendant not guilty. At the October term in Stanley county occurred the trial from which this appeal is taken, and it was the acquittals above referred to that were pleaded by defendant. In support of such pleas it was shown that the evidence introduced upon such trials was the same as that offered and received upon the trial in the case now before us.

Appellant contends that the acquittal upon the charge of stealing the Devine horses was of necessity an acquittal of the present charge, for the reason that the conversations testified to in this case, and which it is claimed connect the defendant with the theft of the Muhlhausen horses, are identically the same ones involved in the Devine Case, and that, therefore, an acquittal in the Devine Case was a complete adjudication between the state and defendant as to these conversations. The appellant is clearly in error. The Constitution provides that no person shall be twice put in jeopardy for the same offense. Section 281, Rev. Code Cr. Proc., allows a defendant to plead a former judgment of conviction or acquittal of the offense charged. Section 290 of such Code provides that, where a defendant has been convicted or acquitted upon an indictment or information, such conviction or acquittal is a bar to another indictment or information for the offense charged in the former. If it were not for the above provisions of the Constitution and statutes, a person, although once acquitted, could again be tried for the identical offense, and certainly no injustice could be done a party guilty of a crime, if such guilt should be established upon a second trial; but, upon grounds of public policy, it has been deemed best that some guilty should escape rather than that there be no limit to one's jeopardy for offenses charged...