State v. Demerly

• Decision Date: 19 November 1929
• Docket Number: 6429
• Citation: 227 N.W. 463,56 S.D. 65
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. WILLIAM DEMERLY, et al, Appellants.
• Court: South Dakota Supreme Court

56 S.D. 65

227 N.W. 463

STATE OF SOUTH DAKOTA, Respondent,

v.

WILLIAM DEMERLY, et al, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Butte County, SD Hon. Walter G. Miser, Judge #6429—Reversed Robert C. Hayes, John T. Heffron, Deadwood, SD Attorneys for Appellant. Buell F. Jones, Attorney General H. A. Linstrom, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion Filed Nov 19, 1929

BURCH, J.

Defendant was convicted of arson in the first degree and appeals to this court from a judgment sentencing him to imprisonment in the penitentiary for a term of 15 years and from an order overruling a new trial.

The errors assigned will be best understood if the facts are stated in chronological order with the background surrounding the case. The scene of the alleged crime is in the ranch country of Eastern Butte county. Defendant and most of the witnesses for the state are ranchmen. At the time of the alleged offense defendant owned about 5,000 acres of land on which were situated two sets of ranch buildings, one set was known as the Sulphur ranch buildings and the other as the Trail Creek ranch buildings. On the morning of the 26th of May, 1923, about 2 o’clock a. m., the dwelling house on the Trail Creek ranch was burned together with the contents of the building, except a few small articles of furniture which were removed by those present. At the time of the fire the house was occupied by four men, namely, Earl Kirk, Paul Smith, Orion Mutchler, and Ed Maguire. Kirk and Maguire were employees of defendant, working at what they termed lambing-out. Smith was employed as cook. Mutchler’s purpose in being at the house will later appear. Kirk and Smith slept together and were asleep until aroused by Mutchler, who notified them the house was afire. Maguire and Mutchler also claim to have retired and fallen asleep, and Mutchler says he was awakened by the fire and called the others. Defendant at that time was at a hotel in Newell, about 35 miles distant. He did not get back to the ranch until the next morning after the fire. The contents of the building were insured for $650 and the building for $1,500. Defendant collected the full amount of the insurance. The insurance adjustor made some investigation and required additional proof of the value of the personal property, and Orion Mutchler furnished a statement to the adjustor saying that the property was worth more than the amount for which it was insured. It also appears in an indirect way from questions propounded that the fire marshal investigated the fire shortly after its occurrence, but there is no evidence that either the adjustor or the fire marshal discovered anything to cause either to suspect the fire was of incendiary origin.

In January, 1925, nearly two years after the fire, defendant’s wife obtained a divorce, and most of the witnesses for the state in this case were witnesses against the defendant in the divorce case. It is quite evident from the record that the principal witnesses for the state took sides against the defendant in the divorce action and that they are hostile to defendant. The principal witnesses frankly admit their hostility and their desire to convict defendant in this case. It appears that before the trial there had been at least two fires, one in which eight saddles used in the round-up conducted by the defendant were burned, and the horses used by the riders scattered. Another was the burning of a haystack belonging to one Leslie Boe. The hostile state’s witnesses ascribe their hostility to defendant to a belief on their part that he was a dangerous man and by implication at least seem to suspect defendant of being connected with the fires. It would hardly seem, however, that there could be any justification in connecting him with the burning of the saddles.

After the divorce action and the apparent feud between Mutchler and some of the other principal witnesses for the state and about two years after the fire, Mutchler says that he concluded he ought to turn state’s evidence, and as far as we can gather from the record, although the actual circumstances are a trifle vague, it appears that Mutchler went to the state’s attorney and informed him that the burning of the Trail Creek ranch building was incendiary; that defendant wanted the building burned in order to collect the insurance; and that he asked Mutcheler to assist Josh Guffey in setting fire to the building, the plan being that defendant would go to Newell, register at a hotel, and stay there over night to establish for himself an alibi; that Josh Guffey, living some 25 or 30 miles distant from the Trail Creek ranch, should ride over and set fire to the building; that Guffey fearing that his horse might get away while he was engaged in setting the fire, leaving him afoot in that neighborhood, wanted some one to ride with him and hold the horse while he set the fire; that Orion Mutchler was unwilling to do this, but was willing that his brother Walter should do so; and that arrangements were made whereby Walter Mutchler would serve in that capacity while Orion Mutchler agreed to go to the house and stay with the laborers and arouse them when...