State v. Callahan
| Decision Date | 08 June 1904 |
| Parties | STATE OF SOUTH DAKOTA, Defendant in error, v. OSMER L. CALLAHAN, Plaintiff in error. |
| Court | South Dakota Supreme Court |
OSMER L. CALLAHAN, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Deuel County, SD Hon. Julian Bennett, Judge Reversed Wilbur S. Glass, Albert R. Allen, DeForrest Ward Attorneys for plaintiff in error. Philo Hall, Atty. Gen. T. J. Law, State’s Atty., Geo. Marquis Attorneys for the State. Opinion filed June 8, 1904
Under an information that is sufficient in every particular, plaintiff in error was tried and convicted of the crime defined by section 156 of the Revised Penal Code as follows: “Every person who knowingly procures or offers any false or forged instrument to be tiled, registered, or recorded in any public office within this state, which instrument, if genuine, might be tiled or registered or recorded under any law of this state or of the United States, is guilty of felony.” Supported by affidavits tending to show that the accused could not have a fair and impartial trial in Deuel county, a motion for a change of venue was made, and the action of the trial court in overruling such motion is assigned as error.
By a large number of opposing affidavits presented by the state, it was made to appear quite clearly that whatever prejudice existed was confined to a small portion of the county, and the fact stands proved that an impartial jury, apparently satis factory to the accused, was quickly secured without the slightest difficulty. The showing here made for a change in the place of trial being less favorable to the applicant than that disclosed by the record in the case of State v. Hall,(1902), where the overruling of a similar motion is sustained, it follows that the ruling now under consideration is clearly within the exercise or a warranted judicial discretion.
An alleged forged assignment of a real estate mortgage, standing of record in the name of C. M. Best, mortgagee, is the instrument which it is charged the accused offered for registration, and to which is attached the purported official certificate and seal of John C. Eakins, a notary public, whose testimony on behalf of the state at a former trial tended strongly to establish the crime charged in the information. Eakins having been subsequently retained to assist in the defense of the accused under a charge of rape, counsel for the prosecution appear to have taken it for granted that he would now be adverse to the state, and attempted to substitute his former examination for present testimony, in the following manner:
“The witness John C. Eakins being first duly sworn, upon examination by Mr. Marquis, testified as follows:
Q. Your name is John C. Eakins?
A. Yes.
Q. You may take into your hands this mortgage assignment and notarial certificate, the same being marked ‘Exhibit F,’ and state whether or not the same was placed in your hands at the trial of this cause at the April term of this court in 1902, and you were asked this question and you gave the following answer: ‘I will ask you, Mr. Eakins, to examine this notarial certificate of acknowledgment,
Exhibit F, and state whether or not you have ever seen that notarial certificate before?’ to which you answered: ‘Do I understand you to mean this?’ and the question ‘yes’ and your answer ‘no'? A. I cannot answer so many questions at once.
Q. I will ask you to examine this notarial certificate of acknowledgment upon Exhibit F, being the certificate of the acknowledgment of the assignment attached to Exhibit F, and state if you have seen that notarial certificate before. You said ‘Do I understand you to mean this?’ and I said ‘yes,’ and to that you answered ‘no.’ Now, Mr. Eakins, was that your testimony?
A. That is mine. Q Whether or not, immediately after that question, you were asked the following question, to which you gave the following answer: ‘ and your answer ‘no.’
A. It is my answer, I suppose.
Q. What was your testimony?
A. I could not say.
Q. This is the transcript made by the stenographer of this court, and these questions were asked: ‘Your name is John C. Eakins?’ Answer. ‘It is.’ ‘You reside at Gary, in this county?’ ‘Yes.’ And on being asked the question referring to this exhibit: ‘You never have seen this before?’ and your answer ‘no’—was that your testimony?
A. Yes.
Q. To which question you answered, ‘No, sir; none at all’—was that your testimony?
A. I suppose so.
Q. To which you answered, ‘At what time?’ And the next question: ‘In May, 1901?’ to which you answered ‘no.’—was that your testimony?
A. I cannot say as to that.
Q. Is it not a fact that...
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State v. Inlow
... ... question, and, if it had not been for counsel's request, ... it seems all of the witness' former statements would have ... been entirely eliminated from the record for every purpose ... We ... remark that the case of State v. Callahan , 18 S.D ... 145, 99 N.W. 1099, relied on by counsel for appellant, is ... clearly distinguishable from the case at bar. The attempt ... there made to get the testimony of a witness known to be ... adverse to the state before the jury was clearly improper. No ... such attempt was made here ... ...
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