State v. Belt

Decision Date14 November 1961
Docket NumberNo. 9910,9910
Citation111 N.W.2d 588,79 S.D. 324
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Jonas BELT, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Tom Eastman, Jr., Rapid City, for defendant and appellant.

A. C. Miller, Atty. Gen., Lester H. Herbrandson, Asst. Atty. Gen., Allen G. Wilson, Hot Springs, Lem Overpeck, Belle Fourche, for plaintiff and respondent.

BIEGELMEIER, Judge.

Defendant charged with murder was found guilty of manslaughter in the first degree. The evidence showed Earl Perreault was killed while he and a neighbor were checking on the person who entered the Pete Perreault farm on the afternoon of August 9, 1959, by breaking the padlocked gate and fence. Earl, a brother of Pete Perreault, lived nearby and was in charge of his brother's farm while Pete was on a vacation. The neighbor discovered the entry, saw a car leave the place and reported it to Earl. Later, defendant, after admitting to the neighbor he had broken the gate started to leave the area. The neighbor and deceased followed defendant in a car and pickup. Defendant drove through the neighbor's fence into his pasture where his car stalled. As the neighbor was leaving to call the sheriff the evidence showed defendant shot and killed Earl and shot at the neighbor when he ran back to where Earl had fallen. Defendant then drove away through the fields in Earl's pickup, breaking down several fences in doing so; after an intensive search he later surrendered to the sheriff at the home of an attorney. This outline but briefly states the record as the transcript of the trial court proceedings covers 1,275 pages, nearly 800 of which consists of the voir dire examination of prospective jurors.

Before trial defendant moved for a change of venue on the ground he could not have a fair trial before an impartial jury in Fall River county where the alleged crime occurred. Defendant's affidavit stated deceased was a longtime and respected white citizen of that county, that defendant, a nonresident thereof, was much hated because he was of Indian blood and was once before implicated in an act of violence and erroneous news reports were made which prejudiced public opinion. Two of the printed reports were attached to this showing; these appear to be a short recounting of the shooting, the search for defendant and the scheduled inquest. A law clerk of defendant's attorney and nine other persons made affidavits in support of the motion. They voiced the opinion that it would be impossible to obtain a jury which, or a juror who, in Fall River county would not be biased against defendant. The state's attorney, sheriff and six other persons made affidavits that in their opinion defendant could receive a fair and impartial trial therein. The trial judge denied the motion. On this showing the trial court did not abuse the sound judicial discretion vested in it. State v. Meservey, 53 S.D. 60, 220 N.W. 139. At the trial the original panel of jurors was exhausted by challenges and it was twice necessary to order additional persons to be summoned as jurors. At each of these times and at the time the jury was chosen, the change of venue motion was made and denied. SDC 1960 Supp. 34.0817 requires the application to be made 'before the trial is begun'. In State v. Johnson, 24 S.D. 590, 124 N.W. 847, 852, this court had under consideration the time requirement as to filing an affidavit of prejudice against a presiding judge provided for in the same section, then Sec. 292 of the 1903 Code of Criminal Procedure. There it wrote:

'The law providing for a change of venue and of judges is designed to secure and preserve the right of the accused to a trial before a fair and impartial court and jury. * * * We hold, therefore, that the calling of the case for trial and the drawing of a juror is the beginning of the trial, and that the right to file an affidavit of prejudice against the trial judge cannot be exercised thereafter.'

The court referred to State v. Pancoast, 5 N.D. 516, 67 N.W. 1052, 35 L.R.A. 518, where the motion for a change of venue was treated as a renewal of the original application in pursuance of leave expressly reserved in the original ruling, indicating the first ruling was tentative only. From the record here it is not clear that appellant has assigned error for overruling the later motions. This being a criminal action we have concluded to deal with all these rulings on their merits.

Defendant is entitled to a trial by an impartial jury. Art. VI, Sec. 7, S.D.Const. Not only should the minds of the jurors be without bias or prejudice, but they should be removed from the bias, prejudice and excitement of others. State v. Meservey, supra; State v. Demerly, 56 S.D. 65, 227 N.W. 463. Defendant points out that while approximately a hundred jurors were examined, around fifty were disqualified for cause. The record does not include a list of the jurors called, challenged and excused (SDC 1960 Supp. 33.1312) so it is not possible to know the persons retained as jurors except they would be from those of the jury panel passed for cause. Fourteen were chosen, counting two alternates. SDC 1960 Supp. 34.3607. A reading of their voire dire examination discloses forty-six were passed for cause by defendant and the State; thus nearly half met the statutory and constitutional qualifications. Many of those challenged and excused had heard or read about the case and had opinions; however, fourteen of these knew deceased, members of his family or some of the state's witnesses; six were excused for their stand on self-defense, five because of age, nonresidence or other reasons; nor was it all one way as a merchant said he could not be fair because it would embarrass him to bring in a guilty verdict as he did business with Indians; another said he knew defendant and could not be fair and impartial. All were subjected to detailed questioning and their answers indicate honesty and straightforwardness and a sincere desire to be fair to defendant. Practically all of those who had opinions said they were based on newspaper accounts, gossip or rumor. As an indication the state was joining in the effort to get impartial jurors, it did not resist these challenges, except in the two instances hereafter noted; none of those challenged and excused were asked if they could and would 'notwithstanding such opinion, act impartially and fairly upon the matters' which if answered affirmatively would not disqualify them as jourors, SDC 1960 Supp. 34.3620. State v. Flack, 77 S.D. 176, 89 N.W.2d 30. There are no claims of demonstrations at, or publicity of, the trial. The written record indicates a calm and even tenor in which a trial should be held, though it was vigorously and aggressively contested; no excitement or prejudice beyond the fact that deceased was well, and apparently favorably, known in the county. The latter is insufficient to indicate defendant did not have a fair trial. State v. Meservey, supra. This is not to be compared with the effect of publicity on a change of venue shown in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898; see same case as Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, where the conviction was held invalid; nor with State v. Sheppard, 165 Ohio St. 293, 135 N.E.2d 340 (cert. den. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119) and State v. Tannyhill, 101 Ohio App. 466, 140 N.E.2d 332, in which the convictions were upheld. With the cautionary remarks in State v. Demerly, supra, in mind a trial court is governed by the exercise of a sound judicial discretion and an appellate court cannot reverse except for abuse of discretion. We have indicated the record shows no outward signs of excitement, ill will or prejudice. The trial court based his conclusion on the entire voir dire examination and also had the benefit of the intangible manifestations of impartiality or partiality reflected by the appearance, conduct and demeanor in the courtroom of the jurors and public. State v. Flack, supra. When ruling on one of the later motions he stated:

'Well, I've listened very carefully to the examination of the jury. I will admit that it appears that Mr. Perreault was widely known, and that he was probably well liked. I have also carefully listened to the answers given by all members who have been examined on the voir dire examination, and it has appeared to me as nearly as I was able to determine that in nearly all instances where a person felt that they would be in any way prejudiced in the case, that they have so stated, and stated that they did not believe they could be fair and impartial jurors, although one, of course, can never be assured, I have not sensed an overwhelming bitterness, but rather a desire on the part of everyone, whether they knew him or not, that the defendant have a fair and impartial trial by the fact that those persons who knew Perreault did not feel that they could or would be fair, and impartial jurors. Motion for change of place of trial is therefore denied.'

Cf. State v. Sheppard, supra. It is not necessary to determine that a change of venue may be granted after the trial has begun even on the court's initiative, with defendant's consent, if it be required to insure defendant's constitutional right of trial by an impartial jury and that should develop during the examination of the jury, though in contravention of the statute (see State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713) as no abuse of discretion is shown.

Defendant exhausted all his peremptory challenges and so may complain of denial of challenges for cause. State v. Flack, 77 S.D. 176, 89 N.W.2d 30. Juror Kaudy was challenged for cause; after further examination by the court and one of defendant's attorneys, defendant's counsel passed this juror for cause; this withdrew his challenge. Juror Hagen was challenged because he first said he had heard the case discussed based on idle rumor, had a...

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