State v. Calkins

• Decision Date: 30 October 1906
• Citation: 109 N.W. 515,21 S.D. 24
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. ISRAEL CALKINS, Plaintiff in error.
• Court: South Dakota Supreme Court

21 S.D. 24

109 N.W. 515

STATE OF SOUTH DAKOTA, Defendant in error,

v.

ISRAEL CALKINS, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Fall River County, SD Hon. Levi McGee, Judge Affirmed E. L. Grantham Attorneys for plaintiff in error. Philo Hall, Attorney General Aubrey Lawrence, Asst. Attorney General Elmer R. Juckett, State’s Attorney Attorneys for the State. Opinion filed October 30, 1906

HANEY, J.

After the first witness on behalf of the state had been asked, and had answered, numerous questions, the defendant objected to “the introduction of any evidence … for the reason that the transcript of the justice of the peace upon which this proceeding is and must be based contained no judgment of the said justice to the effect or containing a finding that the crime had been committed, or that there is probable cause to believe Israel Calkins, the defendant in this case, guilty thereof.” The objection was properly overruled. It came too late. An objection to the introduction of any evidence after material evidence has been received without objection involves a manifest absurdity. Moreover, irregularities in the proceedings before the examining magistrate, if any existed, were waived by failure to move to set aside the information before entering the plea of not guilty, and the defect suggested by the objection did not exist; the magistrate having returned the information or complaint filed with him, indorsed in the manner required by the statute. Rev. Code Cr. Proc. §§ 146, 158.

Though several portions of the charge are criticised in the brief of counsel, the record discloses only one exception, stated thus:

“Thereupon the defendant specifically excepted to that portion of the instructions of the court given to the jury wherein the court states that, if the jury believe the defendant guilty, they should convict him, leaving the question of mercy to the court, for the reason that there is not coupled with the former statement the expression ‘beyond a reasonable doubt,’ and the latter is inflammatory and prejudicial.”

It presumably refers to the following paragraph:

“I instruct you, further, to be governed solely and fully by the testimony and the instructions of the court in this case, and do not allow yourselves to be governed or swayed by the eloquence of counsel, but be governed by the testimony of the witnesses on the stand, and, as to the law, you must leave that to this court. It is not...