State v. Christiansen

• Decision Date: 18 November 1922
• Docket Number: 5014
• Citation: 190 N.W. 777,46 S.D. 61
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. PETER CHRISTIANSEN, Defendant and appellant.
• Court: South Dakota Supreme Court

46 S.D. 61

190 N.W. 777

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

PETER CHRISTIANSEN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Harding County, SD Hon. Raymond L. Dillman, Judge #5014--Affirmed John T. Heffron, Robert C. Hayes, Deadwood, SD Attorneys for Appellant. Byron S. Payne, Attorney General E. D. Roberts, Assistant Attorney General, Pierre, SD Attorneys for Respondent. Opinion filed November 18, 1922

SHERWOOD, J.

Defendant was found guilty by a jury in the circuit court of Harding county, of the grand larceny of a saddle horse belonging to one Albert M. Witt. The horse was branded "Circle L" on the right shoulder, and was taken from the open range in Harding county about July 12, 1919, and two or three days later was found by said Witt and the sheriff of Harding county in defendant's barn in Lawrence county, about 130 miles distant from the range.

Defendant has appealed from the verdict and judgment of the court and assigns seven errors on which he relies for reversal of such judgment.

The first error assigned is in overruling his objection to the following question asked Sheriff Dehlinger by the state's attorney, for the purpose of impeaching the witness Nall:

"Q. I will ask you whether or not you were present Monday morning of this week in the state's attorney's office, the office of Mr. Bennett, and did you hear in substance, this question asked Mr. Albert Nall, the same boy who testified this morning in this case, 'Did you see any other horse in the barn at the time you took Christensen's saddle horse out of there?'

"A. Yes, sir; heard that question asked.

"Q. Did you hear the answer he made to that?

"A. Yes, sir.

"Q. What was it?

"Mr. Heffron: We object to that for the reason absolutely no foundation has been laid for it; no time nor place is fixed as required under the rule; and the question was not put to the witness in the language in which it was put to the sheriff.

"Court: He may answer. (Exception duly noted.)

"A. He said he could not describe the horse."

It appears by the plaintiff's brief and additional abstract that the state's attorney, on cross-examination of the witness Nall, had asked the following questions:

"Q. Did you talk with the state's attorney the other day concerning this matter?

"A. I did.

"Q. Did Mr. Dehlinger, the sheriff of this county, ask you then if you knew the description of the other horse that was in the barn, and did you not reply to the sheriff that you did not pay any attention to him and could not give a description of it?

"A. No, sir.

"Q. You did not make such a statement at all?

"A. No, sir." It further appears from the record that the witness Nall was called to the stand by the defendant, and on his direct examination testified that he had tied the Witt horse in the Christiansen barn; that Christiansen was not there at the time, and he had left the horse tied with a rope around its neck; that he had been subpoenaed as a witness for the state and had been examined by the attorney for the state, and on his cross-examination he had described the Witt horse quite minutely, and had testified positively that he left him, tied in the Christiansen barn and there was no other horse there, and had further been cross-examined by the state as above set forth.

It will be seen that Nall had not only testified on his direct examination to this conversation with the state's attorney, but had his attention again called to it on his cross-examination, and again admitted having such a conversation, arid the question fixed the time the conversation occurred as "just the other day." Nall was then asked if Sheriff Dehlinger did not ask him in that conversation if he knew the description of the other horse, referring clearly to the Witt horse Nall had just testified he left tied in the barn by a rope. These questions fixed the time and place with reasonable certainty and gave the names of both the parties with whom the conversation occurred. Nall's attention was then particularly directed to the question plaintiff claimed was asked him by Sheriff Dehlinger and to the answer which Sheriff Dehlinger later testified the witness Nall made to him. It is true that plaintiff in asking the question of the sheriff, said, "Did you see any other horse in the barn?" and, in asking the question of Nall, said, "Did you know the description of the other horse in the barn?"

But no one was misled by the slight difference in the form of the questions, and, in substance, they were the same and related to the same conversation and the same horse; and the sheriff answered in the exact words he claimed were used by the witness Nall, and to which the witness Nall's attention had been particularly directed, to-wit, that Nall said he "could not give the description of the other horse that was in the barn."

It is sufficient if the substance of the statement made by the witness is given. 5 Jones on Evidence, par. 846; State v. Hughes, 66 N.W. 1076; Wharton, Criminal Evidence, vol. 1. p . 1 000.

Another assignment of error is based upon remarks made by the state's attorney in his closing argument, which were excepted to by the defendant, in which he said in substance "that the wife of Peter Christiansen said to him (Christiansen) that he (Christiansen) should not have taken these horses." Immediately on this statement being challenged by the defendant, the state's attorney said:

"The state's attorney desires to make a further statement in reference to the statement to the jury. It was in reference to a conversation had between the sheriff. Mr. Dehlinger, and Chris- tiansen's wife in Christiansen's presence."

No request was made by defendant that the court reprimand the state's attorney; and no instruction was asked of the court instructing the jury to disregard the evidence or otherwise. But it appears from the record that the court upon its own motion, said:

"Well, proceed. Where there is a disputed question as to what the record contains, the jury will have to recall what the testimony was the best they can. I do not recall there was any evidence of that character."

It appears from the record that Sheriff Dehlinger had a conversation with Mrs. Christiansen, in the house in the presence of her husband, and that this was the conversation the state's attorney alluded to in his remarks: and, while the record does not show that Mrs. Christiansen used the words that he (referring to her husband) "should not have taken the horses," she did say "the horses were given to my husband," and that this horse was given to him by Eyster and Hett for helping to bring the horses down.

We do not think, under the evidence, that this statement was prejudicial to the defendant or an intentional misstatement of the testimony on the part of the state, or that it amounted to independent testimony on the part of the state's attorney.

But, aside from this, we think this specification of error is not...