State v. Cherrington

• Decision Date: 24 November 1914
• Docket Number: No. 3621.,3621.
• Parties: STATE v. CHERRINGTON.
• Court: South Dakota Supreme Court

34 S.D. 562

149 N.W. 421

STATE

v.CHERRINGTON.

No. 3621.^†

Supreme Court of South Dakota.

Nov. 24, 1914.

Appeal from Circuit Court, Lyman County; William Williamson, Judge.

James Cherrington was convicted of grand larceny, and he appeals. Affirmed.Bartine & Bartine, of Oacoma, for appellant.

Royal C. Johnson, Atty. Gen., and Herman L. Bode, State's Atty., of Murdo, for the State.

McCOY, J.

Defendant was convicted in the circuit court of grand larceny, and brings this appeal. The sufficiency of the evidence to justify the verdict is not questioned.

[1] Several witnesses were sworn, and gave testimony on behalf of the state, whose names were not indorsed on the information. At the time of the calling of such witnesses to the stand to testify, defendant objected and duly excepted on the ground that their names were not indorsed on the information. The state's attorney at such times stated that he did not know of such witnesses at the time of the filing of the information. We are of the view that no error was committed in permitting such witnesses to testify, for the reasons stated in State v. Fulwider, 28 S. D. 622, 134 N. W. 807,State v. Matejousky, 22 S. D. 30, 115 N. W. 96, and State v. King, 9 S. D. 628, 70 N. W. 1046. There was no showing made at the time such witnesses were called in relation to whether the state's attorney knew of such witnesses at the time of filing of information. If defendant was surprised, and not prepared to meet such testimony at the calling of such witnesses, it was his duty to then and there apply by affidavit and make a showing for a postponement of the cause of give him an opportunity to contradict such testimony, if he desired to do so, or could do so; and if the court became satisfied and such showing was in good faith and was sufficient, it would then be the duty of the court to give defendant a reasonable time in which to procure his testimony.

[2] Over objections of the defendant the trial court received in evidence the court records, showing that defendant had given a recognizance bond with sureties to appear at a prior term of said circuit court, and that defendant failed to appear at such term of court, and that his bond was forfeited by reason thereof. This ruling is assigned as error. We are of the view that there was no error in this ruling. The conduct of a defendant after the time of the commission of the alleged offense, and his attitude and relation toward such alleged crime, are always relevant. While such conduct may not be sufficient evidence to alone warrant a conviction, still it constitutes a circumstance which the jury have a...