State v. Buffalo Chief, No. 10376

CourtSupreme Court of South Dakota
Writing for the CourtBIEGELMEIER
Citation83 S.D. 131,155 N.W.2d 914
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Larry BUFFALO CHIEF, Defendant and Appellant.
Decision Date24 January 1968
Docket NumberNo. 10376

Page 914

155 N.W.2d 914
83 S.D. 131
STATE of South Dakota, Plaintiff and Respondent,
v.
Larry BUFFALO CHIEF, Defendant and Appellant.
No. 10376.
Supreme Court of South Dakota.
Jan. 24, 1968.

[83 S.D. 133]

Page 915

David F. Sieler and R. James Brennan, Pennington County States Atty., Rapid City, and Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent, Frank L. Farrar, Pierre, on the brief.

Clinton G. Richards, of Hayes & Richards, Deadwood, for defendant and appealant.

BIEGELMEIER, Judge.

On the evening of October 9, 1965, C. F. Thorn was one of the passengers in an automobile driven by Charles Johnson, on their way to downtown Rapid City. Finding no available parking space, Johnson drove into an alley when he discovered he could not pass because another car was stopped in the middle of the alley with persons standing outside the car talking to those inside. They were referred to in the testimony as Indians. After sounding his horn and calling out for the car ahead to be moved and getting no results, Johnson walked up to it and shortly was struck by one of the persons there and knocked [83 S.D. 134] down. Thorn got out of the Johnson car and also walked up to the area ahead. He was hit, beaten and kicked by three of the men, two of whom were Buffalo Chief and Leon Gayton, as a result of which he died within minutes. Other facts will be detailed as necessary in considering the questions presented. A jury found defendant guilty of manslaughter in the first degree and he appeals from the judgment imposing sentence, and is now represented by other than his trial counsel.

The Buffalo Chief twelve assignments of error are grouped to present five questions, two of which his counsel at oral argument indicated were the principal points. They will therefore first be considered. Defendant claims no error in the court's instructions or that they are improper, but asserts error for the court to submit the charge of murder to the jury, contending the evidence was insufficient to support that charge. There was evidence that while Johnson was fighting with one of the occupants of the car, Gayton struck Thorn from the back and another man struck him on the side of the head and knocked him down on the ground; as injured Thorn started crawling back to his car on his hands and knees, three of them were kicking and hitting him. Buffalo Chief kicked him in the face with such force he went over backwards. Mrs. Johnson identified Buffalo Chief as one of the persons who was beating Thorn and kicking him in the face and head from the left side as he was on the ground and

Page 916

Gayton on the right side; she asked them to quit, took hold of Buffalo Chief's jacket to try to stop him, but he jerked away. She told them, "You're killing him, quit, he is dying, don't kick him anymore,' but they wouldn't stop'. After Thorn was lying on his back the two defendants and another man continued to kick him. Miss Fast Horse, who was in the front car with defendants, testified she saw both of them kick Thorn quite a few times; that defendant Gayton 'came running back to the car, he jumped in the back seat and we left'; that later he advised her he had told the police he had passed out in the back seat of the car and he told her to say the same. Another witness testified he looked up the alley, saw a man in a khaki outfit get out of the car and walk up to the other car; at least three men got out of that car, started swinging, knocked [83 S.D. 135] him down; the man went down to his knees, he went over backwards, and 'they kicked him quite a number of times and then they jumped back in the car and drove away.' The medical testimony was to the effect Thorn's death was the direct result of intercranial hemorrhage due to multiple blows to the head; these could be caused by blows from a fist or kicking of a foot, shoe or boot.

Defendant also makes the point of lack of evidence of a premeditated design to effect Thorn's death. SDC 13.2007 provides:

'Homicide is murder in the following cases:

(1) When perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being'.

SDC 13.2008 provides:

'A design to effect death, sufficient to constitute murder, may be formed instantly before committing the act by which it is carried into execution. Such design is inferred from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed.'

In State v. Godlasky, 47 S.D. 36, 195 N.W. 832, the court approved an instruction to the jury embodying the last sentence of SDC 13.2008, and we believe the first sentence there also mentioned is a proper guide in the trial of homicide prosecutions. Both appear to be rules of law reached by some courts, for in State v. Ogilvie, 180 Or. 365, 175 P.2d 454, which supports the design by inference doctrine, the court wrote: 'Direct proof of deliberation and premeditation is not necessary but they may be inferred from the circumstances of the killing'. Sandoval v. People, 117 Colo. 588, 192 P.2d 423; Wharton on Homicide, 2nd Ed., § 180; State v. Gowdy, 262 Minn. 70, 113 N.W.2d 578. Other authorities are to the same effect. The design (to effect death) may have existed for only an instant before the commission of the crime. 26 Am.Jur., Homicide, § 42; State v. Gowdy, supra, and State v. Powell, 237 Iowa 1227, 24 [83 S.D. 136] N.W.2d 769, recognizing the rule. The evidence which we have only sketched, including the unprovoked assault on and the continued brutal kicking of the helpless decedent when he was crawling on his hands and knees to escape his attackers, even after the fruitless effort of Mrs. Johnson to stay them, was sufficient to submit the charge of murder to the jury.

Defendant's argument on the insufficiency of evidence claim is largely...

To continue reading

Request your trial
14 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969). The right to counsel may be waived, of course, if the waiver is "made volu......
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • January 15, 1986
    ...right to defend by counsel of his own choice. See State v. Goode, 84 S.D. 369, 372, 171 N.W.2d 733, 734 (1969); State v. Buffalo Chief, 83 S.D. 131, 138, 155 N.W.2d 914, 918 (1968); and State v. Erickson, 83 S.D. 79, 81, 155 N.W.2d 313, 314 (1967). Right to trial by jury is guaranteed by th......
  • State v. O'Connor, No. 11942
    • United States
    • Supreme Court of South Dakota
    • April 20, 1978
    ...the trial court is not called upon to rule thereon and objection cannot be raised the first time on appeal. State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914 (1968); State v. Gayton, 83 S.D. 141, 155 N.W.2d 919 (1968); State v. Halverson, 87 S.D. 110, 203 N.W.2d 421 (1973); see also State......
  • State v. Bean, No. 12098
    • United States
    • Supreme Court of South Dakota
    • May 3, 1978
    ...from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed." In State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914, we held that the design to effect death need exist for only an instant before the commission of the crime, and that direct proof o......
  • Request a trial to view additional results
14 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969). The right to counsel may be waived, of course, if the waiver is "made volu......
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • January 15, 1986
    ...right to defend by counsel of his own choice. See State v. Goode, 84 S.D. 369, 372, 171 N.W.2d 733, 734 (1969); State v. Buffalo Chief, 83 S.D. 131, 138, 155 N.W.2d 914, 918 (1968); and State v. Erickson, 83 S.D. 79, 81, 155 N.W.2d 313, 314 (1967). Right to trial by jury is guaranteed by th......
  • State v. O'Connor, No. 11942
    • United States
    • Supreme Court of South Dakota
    • April 20, 1978
    ...the trial court is not called upon to rule thereon and objection cannot be raised the first time on appeal. State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914 (1968); State v. Gayton, 83 S.D. 141, 155 N.W.2d 919 (1968); State v. Halverson, 87 S.D. 110, 203 N.W.2d 421 (1973); see also State......
  • State v. Bean, No. 12098
    • United States
    • Supreme Court of South Dakota
    • May 3, 1978
    ...from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed." In State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914, we held that the design to effect death need exist for only an instant before the commission of the crime, and that direct proof o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT