State v. Cambron
| Decision Date | 29 November 1905 |
| Citation | 105 N.W. 241,20 S.D. 282 |
| Parties | STATE v. CAMBRON. |
| Court | South Dakota Supreme Court |
Error to Beadle County Court.
Claud Cambron was convicted of keeping a house of ill fame, and brings error. Affirmed.
A. W Wilmarth and A. W. Burtt, for plaintiff in error.
Philo Hall, Atty. Gen. (Aubrey Lawrence, of counsel), for the State.
The plaintiff in error was indicted, tried, and convicted of the offense of keeping a house of ill fame in the county of Beadle, and sentenced to imprisonment in the state's prison for a term of years. The case is now before us on writ of error to the circuit court of that county. Numerous errors are assigned and discussed by counsel for the plaintiff in error, and they will be taken up and disposed of in their order. Prior to the March term, 1905, the state's attorney of Beadle county and the county commissioners of that county requested the circuit court to call a grand jury and the court thereupon by its order directed the sheriff to summon eight good and lawful men to constitute such grand jury. On the day the jurors were required to appear two failed to answer, and thereupon the court instructed the sheriff to summon two additional jurors as talesmen, which duty the sheriff performed, and the two additional jurors were impaneled and sworn and took part in the deliberations of the jury with the six remaining of the old panel.
It is contended by the plaintiff in error, whom we shall hereafter designate as defendant, that the court erred in making an order requiring the sheriff to summon the two additional jurors. It is further contended that the court was not authorized to impanel a grand jury as the reasons requiring the calling of such a jury were not fully set out in the request of the state's attorney made to the court. These questions are not properly before us, for the reason that they have not been made by statute grounds upon which a challenge to the panel may be interposed and it does not affirmatively appear that the defendant was in any manner prejudiced by the ruling of the court. Similar questions have recently been decided by this court in the case of State v. Shanley (S D.) 104 N.W. 523, and State v. Lamphere (S. D.) 104 N.W. 1038, and the questions were so fully discussed in these cases that we deem a further discussion of them unnecessary. The true rule seems to be that an indictment found by a grand jury, one or more of whose members were irregularly drawn, but who possessed the requisite qualifications, is valid, and the proceedings by which a juror gets on the panel does not affect the validity of the action. Commonwealth v. Brown, 147 Mass. 585, 18 N.E. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736; Carpenter v. People, 64 N.Y. 483; Ferris v. People, 35 N.Y. 125; Wilhelm v. People, 72 Ill. 468; Rolland v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758; People v. Ah Chung, 54 Cal. 398; Cox v. People, 80 N.Y. 500; State v. Copp, 34 Kan. 522, 9 P. 233; Commonwealth v. Walsh, 124 Mass. 32; People v. Hooghkerk, 96 N.Y. 149; Commonwealth v. Moran, 130 Mass. 281; In re Wilson, 140 U.S. 585, 11 S.Ct. 870, 35 L.Ed. 513; People v. Lauder, 82 Mich. 109, 46 N.W. 956.
A demurrer was interposed to the indictment, upon the ground that the facts stated therein did not constitute a public offense, which was overruled. The offer of evidence at the trial was also objected to on the same ground, which was overruled by the court. The objection to the indictment made seems to be that it does not allege the specific lot or block or place where the house of ill fame was conducted, and for that reason the defendant contends that the indictment was uncertain and indefinite. It is true the indictment in this case designates no lot or block upon which the house was situated, but states generally, as in ordinary criminal cases, that it was within the county of Beadle. We are of the opinion that the demurrer to the indictment and objection to the evidence offered at the trial were properly overruled, as the law does not require in this class of cases that the particular lot or block or locality of the house should be designated. It is sufficient that it be alleged that the offense was committed within the county, and that the evidence showed such to be the fact. Counsel for defendant, in support of his contention, cites the case of State v. Burchard, 4 S. D. 548, 57 N.W. 491, but that case, in our view, is not authority in the case at bar. This court held in that case that in an indictment or information for the sale of intoxicating liquors it was necessary to specify or name the persons to whom the liquor was sold in order that the defendant might know what charge he was called upon to meet; but this is a case in which the offense does not consist of a specific act, but in conducting a public nuisance. In such an offense a specific place need not be alleged in the indictment. It is said in 7 Ency. of Plead. & Prac. p. 14: "The location of the house need not be alleged further than to show that the court has jurisdiction." As supporting the indictment given in the case at bar the following cases may be cited. State v. Stevens, 40 Me. 559; Com. v. Shea, 150 Mass. 314, 23 N.E. 47; People v. Saunders, 29 Mich. 269; Huber v. State, 25 Ind. 175; Harlow v. Com., 11 Bush, 610; State v. Crogan, 8 Iowa, 523; State v. Prescott, 33 N.H. 212; Greensburg v. Corwin, 58 Ind. 518; Com. v. Welch, 1 Allen, 1; State v. Staker, 3 Ind. 570; State v. Hendricks, 15 Mont. 194, 9 P. 93, 48 Am. St. Rep. 666; Handy v. State, 63 Miss. 207, 56 Am. Rep. 803.
It is further contended by the defendant that the court erred in permitting certain witnesses to be asked leading questions, and in the court's stating in the presence of the jury that the witnesses were unwilling witnesses, and therefore permitted leading questions to be asked them. We are of the opinion that there was no error committed by the court in this ruling. It is clear from the evidence that the witnesses interrogated were unwilling witnesses and unfriendly to the prosecution, and in such case the court is authorized to permit leading questions to be asked the witnesses, and the contention that it was a matter for the jury to determine whether or not the witnesses were unwilling witnesses and were such as might be asked leading questions was a matter for the jury, is certainly untenable. It is for the court to determine whether or not the manner and conduct of the witnesses are such as to show them unwilling witnesses to whom counsel can propound leading questions. This is a well-recognized exception to the general rule, and the exercise of the court's discretion in permitting such questions will not be reviewed by this court, unless there is a manifest abuse of such discretion. Mr. Jones, in his work on Evidence, says: Jones on Evidence, § 817. "The subject is one of judicial discretion, and the allowing or refusing leading questions is not generally a ground for appeal." Id. § 819.
It is further contended by the defendant that other questions asked the witnesses as to the manner of conducting the business in connection with the house, as to who went there, as to what they were doing there, as to there being other hacks there at the same time, as to the visits being in the nighttime, and as to the purpose and object of their going there, and the people taken there, were incompetent and inadmissible, but we are of the opinion that they were clearly competent, as tending to show the character of the house, and the business carried on there, and that from such evidence the jury might properly find that the house was of the character designated in the indictment, namely, a house of ill fame. The object of the evidence was not to show any specific offense committed by any of the parties going there, but to show the character and nature of the business carried on there. The contention of the defendant that the character of the house could only be proven by reputation as provided by chapter 154, p. 179, Laws 1903, is clearly untenable as the provisions of that act...
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