State v. Brandell

• Citation: 129 N.W. 242,26 S.D. 642
• Parties: STATE v. BRANDELL.
• Decision Date: 28 December 1910
• Court: South Dakota Supreme Court

129 N.W. 242

26 S.D. 642

STATE v. BRANDELL.

Supreme Court of South Dakota

December 28, 1910

Appeal from Circuit Court, Hyde County.

Frank Brandell was convicted of grand larceny, and appeals. Affirmed.

A. K Gardner, John Pusey, and C. E. Noel, for appellant.

S. W Clark, Atty. Gen., Cloyd D. Sterling, Asst. Atty. Gen., and Royal C. Johnson, State's Atty., for the State.

CORSON J.

Upon an information duly filed by the state's attorney of Hyde county, the defendant was informed against, in connection with Fred Cline and George McCarthy for the crime of grand larceny, alleged to have been committed on or about the 5th day of December, 1908, in the said county of Hyde, and it is alleged therein that the three parties named on the date aforesaid "did willfully unlawfully, and feloniously, by fraud and stealth, take, steal and carry away, certain personal property, to wit, one brown mare with mealy nose, three years old, weight about 1,200 pounds, then and there in the possession of and of the goods, property and chattels of W. L. Thompson and of the value of the hundred seventy five dollars, without the consent of the owner thereof and with intent to deprive the owner, the said W. L. Thompson, thereof." A separate trial was granted to the defendant, and he, having been found guilty, has appealed to this court from the judgment and order denying a new trial.

It is contended by the appellant that the court erred in denying defendant's motion for a continuance. It will be noticed that the defendant was informed against and charged jointly with Fred Cline and George McCarthy. A preliminary hearing was had, and all three were held by the examining magistrate, and required to give bonds to appear at the circuit court. It was conceded by the state's attorney that George McCarthy was dangerously ill, and his case was continued. Before the commencement of the trial, the appellant moved for a continuance and for a separate trial. The application for continuance on the part of the defendant, Brandell, and Cline, was denied. Upon a careful examination of the affidavits made on the part of Brandell and Cline, we are of the opinion that the court committed no error in denying the motion. The practice of the circuit courts of this state in criminal cases relating to the postponement or continuance of a trial not being specifically provided for in the Codes of Criminal Procedure, such application must be made in accordance with the practice of the common law, except in so far as that practice may be in conflict with the state Constitution. Section 643 of the Criminal Code, relating to this subject, is as follows: "The procedure, practice and pleadings in the circuit courts of this state, in criminal actions or in matters of a criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law." The granting or refusing of such motion is ordinarily within the sound judicial discretion of the trial court, and its ruling thereon will not be reversed by this court, unless there has been a manifest abuse of such discretion. State v. Wilcox, 21 S.D. 532, 114 N.W. 687; 9 Cyc. p. 166; 4 Ency. Pl. & Pr. p. 827; Gaines v. White, 1 S. D. 434, 47 N.W. 524; Pierie v. Berg, 7 S. D. 578, 64 N.W. 1130; Hood v. Fay, 15 S.D. 84, 87 N.W. 528; Saastad v. Okeson, 16 S.D. 377, 92 N.W. 1072; State v. Phillips, 18 S.D. 1, 98 N.W. 171.

In 9 Cyc., supra, the common law applicable to a continuance in a criminal case is thus stated: "A party charged with a crime has no natural or inalienable right to a continuance, and, in the absence of a statute, is not entitled to the same as a mere matter of right or law. At common law such applications were addressed to the sound discretion of the court, and its decision thereon could not be assigned as error; and, while now the practice acts in perhaps all American jurisdictions authorize the review of such decisions by the appellate tribunals, the rule is well established that the trial court still acts within its own discretion in granting or refusing an application for a continuance in a criminal case, whether it be on behalf of the accused or of the state, which ruling will not be disturbed in the absence of a clear abuse of discretion." As, in our view of the case, the affidavits were clearly insufficient to entitle the defendant to a continuance as a matter of right, we do not deem it necessary to insert the affidavits in this opinion.

It is disclosed by the evidence on the trial of the information that W. L. Thompson was the owner of a band of horses which ran on the prairie near his home, about four miles from Highmore; that the band of horses included the mare described in the information; that at about the time alleged the animal was missed from the ranch by said Thompson, and that he was unable to find the same after a diligent search; that the animal was taken from the band by one Charles Bowman, a young man about 18 years of age, who lived at the time at and in the vicinity of Highmore; that two or three days subsequent to the taking the animal came into the possession of the defendant, Frank Brandell, who, a few days thereafter, shipped the same by freight on the railroad to one George McCarthy at St. Lawrence, in an adjoining county; that on or about the 20th of March, 1909, the defendant, Frank Brandell, was arrested on the charge of having committed the crime, and on the trial Bowman testified, in effect, that he was employed by defendant, Brandell, to go out to the ranch and bring the animal in for him; that prior to the arrest of Brandell he learned that he was suspected of being guilty of the larceny, and that he thereupon had an interview with Bowman, in which he informed Bowman of the contemplated proceedings against him, and that thereupon it was arranged between him and Bowman, in order to remove suspicion from himself, that Bowman should state that he took the animal by mistake from the ranch of Thompson, believing it to be an animal that he had purchased or taken in payment of one McIver for work that he had done for him and sold the same to him, Brandell; that the defendant and Bowman went out several miles and visited McIver, and he was induced to corroborate Bowman's statement that he had sold an animal of a similar description to the said Bowman; that at the suggestion of one C. H. Drew, who was cashier of a bank in Highmore and who had been a partner of Brandell's after being informed by Bowman of the transaction as agreed upon between him and the defendant, Brandell, and McIver, they visited the office of the state's attorney and the account of the transaction as agreed upon was given by the defendant, Brandell, Bowman, and McIver to the state's attorney; that the state's attorney, not being satisfied with the statement of the witnesses, subsequently filed the information upon which the defendant was tried. Bowman, as a witness on the part of the state, admitted that the statement made by him to the state's attorney in his office was not true, and stated that he in fact was employed by the defendant to go out to the ranch and get the animal and bring her in for him, for which he was to receive $10; that Bowman did take the animal from the ranch, brought it to town, and that, the defendant not being ready to receive it, he turned it out for a day or two on the ranch with some horses belonging to one Dobson; that subsequently, two or three days after, at the suggestion of the defendant, Brandell, he again brought the animal into town, and placed it in the barn of one Gardner, from which it was taken by some person, and the evidence tended to prove that that person was Frank Brandell himself, and shipped a day or two afterwards by him to McCarthy. McIver who was a witness also on the part of the state admitted that the statement made by him to the state's attorney as corroborating the statement of Bowman was untrue, and that the statement made by him as the statement agreed upon between him and Bowman at the time the defendant, Brandell, came out with Bowman to see him, and the story of his selling an animal of a similar description to Bowman was a fabrication, and made for the purpose of aiding Brandell in exoneration of himself from the charge of having been connected with the larceny of the property.

It is contended by the appellant, first, that the evidence does not establish the corpus delicti, and there is a total lack of proof that the animal taken was the animal described in the information, and no proof that said animal belonged to W. L Thompson. It will be observed that the description of the animal alleged to have been stolen was "one brown mare with merely nose, 3 years old, weight about 1,200 pounds, then and there in the possession of and of the goods, property, and chattels of W. L. Thompson." W. L. Thompson, as a witness for the state, testified that he was a stock raiser; that he has kept on hand from 2 to 100 head of horses in Lincoln township, Hyde county, four miles from Highmore; that on the 4th of December he missed the animal; that she was a brown mare with "light nose," coming 3 years old, weight about 1,200 pounds, which he valued at $175; that he did not give any one authority to take that mare, did not give consent to take the mare or do anything with her; that at the time she was taken she was running at his place or within a short distance of it at the...