State v. Davidson

• Citation: 9 S.D. 564,70 N.W. 879
• Parties: STATE OF SOUTH DAKOTA, Defendant in error. v. DAVIDSON, Plaintiff in error.
• Decision Date: 06 April 1897
• Court: Supreme Court of South Dakota

9 S.D. 564

70 N.W. 879

STATE OF SOUTH DAKOTA, Defendant in error.

v.

DAVIDSON, Plaintiff in error. South Dakota Supreme Court Error to circuit court, Butte County, SD Hon. A. J. Plowman, Judge Reversed Joseph B. Moore, Rice & Polley Attorneys for plaintiff in error. Coe I. Crawford, Attorney General, Pierre, SD Attorney for defendant in error. Opinion Filed, April 6, 1897

CORSON, P. J.

The defendant was indicted, tried and convicted of the crime of murder, and, under the verdict of the jury, he was sentenced to state prison for life. The alleged murder was committed in the unorganized county of Wagner, adjoining Butte county, in which latter county the case was tried. The evidence against the defendant is what is known as “circumstantial evidence”, there being no direct proof that the defendant committed the murder. Giles, the deceased, was engaged in the business of ranching, and had a herd of cattle. He lived on his ranch with his wife and two children. Defendant Davidson was what is known as a “cowboy,” or herder of cattle, and had, prior to the death of Giles, been in the employ of various ranchers in that vicinity. The theory of the prosecution was that the defendant had been, for some time prior to the killing, criminally intimate with the wife of the deceased, and that deceased had been advised of this criminal intimacy, and trouble for the defendant was likely to follow. To get the deceased out of the way, and secure the herd of cattle for himself and Mrs. Giles, it was claimed, the defendant had a sufficient motive for committing the murder. A few days previous to his death, the deceased went to Dickinson, on the Missouri river, about 120 miles from his home, and on his return. when a few miles from home, he was shot and killed. The defendant and Mrs. Giles, widow of deceased, were jointly indicted for the murder of Giles, but, on application, the defendant was granted a separate trial. The prosecution, to establish a motive for the killing on the part of the defendant, proved, by a number of witnesses, facts tending to show the criminal intimacy between the defendant and Mrs. Giles. The defense, to disprove this theory, and thus do away with the alleged motive, introduced witnesses to disprove the alleged intimacy between the defendant and Mrs. Giles. Among these witnesses was one Archie Hodgkins, a brother of Mrs. Giles, who lived at Dickinson, on the Missouri river, before mentioned. Hearing of the murder of his brother-in-law Giles, Hodgkins, with Charles Anderson and one Benson, came down to the Giles or O. G. ranch, arriving there about a week after the death of Giles, and remaining there two or three days. This statement will be sufficient to an understanding of the error relied upon for a reversal of this case.

Hodgkins, when on the stand for the defense, on his cross-examination by the state, was asked this question:

“Did you not state at the E. O. ranch, to Mr. Anderson, that, since you had investigated the matter down there, you were convinced that Davidson had killed Giles, or words to that effect, the night of the 16th or 17th of May, 1893?”

The question was objected to and the objection overruled, and an exception taken. To the question the witness answered “No, sir.” When the prosecution introduces its rebuttal evidence, it called Charles H. Anderson, and propounded to him the following question, reading to the witness the former question propounded to Archie Hodgkins: “Did you have such a conversation with him?” The question was objected to as not proper rebuttal testimony, but the objection was overruled, and the witness answered, “Yes, sir.” The question is somewhat peculiarly framed; but that it was fully understood by the jury is made clear by the fact that the court, of its own motion, in the presence of the jury, immediately asked the witness if “Hodgkins told him that,” and the witness replied that he did. The counsel for the defendant now contend that the question propounded to the witness Hodgkins was inadmissible, and should have been excluded; but, in any event, the prosecution was concluded by the answer of the witness, as the question was collateral to the issue, and went to the expression of an opinion or conclusion of the witness, and was not the statement of any fact in the case, and hence should have been excluded. The counsel for the prosecution contend that the question was not collateral to the issue, and was proper to show the bias and feelings of the witness. We are of the opinion that the question should have been excluded under the objections of the defendant when propounded to Archie Hodgkins, as to his opinion or conclusion as to the guilt or innocence of the defendant was clearly immaterial and collateral to any issue in the case. But, in any event, the prosecution, was concluded by his answer, and the overruling of the objection to the question propounded to Anderson was clearly error.

The rule may be said to be well settled that the statement of the witness upon which he can be impeached must not only relate to the issue, but it must be a matter of fact, and not merely a former opinion of the witness in relation to the matter in issue, inconsistent with a different opinion, which might seem to be warranted by his testimony, or which the facts he ’ testified to tend to establish. Elton v. Larkins, 5 Car. & P. 385; Holmes v. Anderson, 18 Barb. 420; People v. Webb (Cal.) 11 Pac. 509; Davis v. State (Tex. Cr. App.) 20 S.W. 923; People v. Stackhouse, 49 Mich. 76, 13 N.W. 364; Drake v. State (Tex. App. ) 15 S.W. 725; Hildeburn v. Curran, 65 Pa. St. 59; Corn. v. Mooney, 110 Mass. 99; 1 Greenl. Ev. § 449; Whart. Crim. Ev. 457-459. The principle is well illustrated in the early English case of Elton v. Larkins, supra. In that case the insurance broker who procured the insurance for the plaintiff testified upon the trial, as a witness for the defendant, that he omitted to make certain disclosures which it was claimed were material, and the omission of which would avoid the policy; and on the cross-examination he denied that he had said, some time after the policy was effected, that “the underwriters had not a leg to stand on in their defense.” A witness was called to prove that he did make such a statement, but the court excluded the evidence. The ruling of the court was sustained, upon the ground that the statement did not relate to the matter in issue, and was not as to a matter of fact, but only as to an opinion of the witness. In Hildeburn v. Curran, 65 Pa. St. supra, the supreme court of Pennsylvania, speaking by Mr....