State v. Devers
| Decision Date | 23 October 1913 |
| Citation | 143 N.W. 364,32 S.D. 473 |
| Parties | STATE v. DEVERS. [d] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; John F. Hughes, Acting Judge.
Frank Devers was convicted of offering beef for sale without exhibiting the hide. Affirmed.
John T Milek, of Sturgis, and William W. Soule, of Rapid City, for appellant.
Royal C. Johnson, Atty. Gen., and M. Harry O'Brien, Asst. Atty Gen., for the State.
The defendant and appellant was convicted of a violation of section 2945, Pol. Code, which provides: "It shall be unlawful for any person or persons who occasionally slaughter cattle for beef to offer for sale said beef without exhibiting the hide or hides of such beef at the time and place said beef is offered for sale." From the judgment of conviction and an order denying a new trial, he has appealed. Appellant has assigned numerous errors which present but a few separate questions.
Appellant complains of certain rulings of the court admitting testimony. While the record presented to this court sets forth the questions and answers complained of, yet, omitting three or four questions, it does not appear that any exceptions were taken to the rulings of the court thereon.
Furthermore the only objection that appears to have been made to any one of said questions was a general objection to the effect that the question was either incompetent or immaterial. Such an objection in no manner calls the court's attention to the precise reason why a question or an answer called for thereby was or would be incompetent or immaterial. Under the established rule prevailing in this state, such an objection is wholly insufficient upon which to base either a specification or assignment of error. McQueen v. Bank of Edgemont, 20 S.D. 378, 107 N.W. 208.
Appellant contends that the evidence was wholly insufficient to support the verdict, but he has failed to comply with rule 6 of this court (140 N.W. viii) providing: "That, whenever the appellant shall seek to rely upon an assignment to the effect that the evidence was insufficient to support the verdict, finding, or other decision, he shall cause it to affirmatively appear that the *** statement in his brief contains a statement of all the material evidence received upon the trial," which requirement is by rule 9 (140 N.W. ix) made to apply to criminal causes. Furthermore the record as presented discloses ample evidence to sustain the verdict rendered unless appellant is correct in his contention that it was necessary, under the information filed, for the state to prove that the beef sold was from cattle killed by the appellant in Pennington county, S. D.; whether or not there was evidence showing that any of the cattle were killed in Pennington county the record does not disclose.
A reading of the statute quoted reveals the fact that the gist of the offense is the selling of the beef without exhibiting the hide or hides. The statements in said statute, relating to the killing of the animal, are only for the purposes of limiting the commission of this offense to such persons as "occasionally slaughter cattle for beef." Under this statute it is absolutely immaterial where the cattle were killed; the material thing being that the person by whom the beef was offered for sale be the person who slaughtered the same and a person who occasionally slaughters cattle for beef.
It appears, however, that the information filed herein charged that on and between certain dates "at the county of Pennington and state of South Dakota" the defendant did "slaughter cattle for beef and for the purpose of selling said beef and did, at said time or times and at said place, wrongfully and unlawfully offer said beef for sale without exhibiting the hide or hides of such beef at the time and place he offered the same for sale." The information, it will be seen, alleged the venue not only of the unlawful sale but the venue where it was charged the cattle were killed. It is the contention of the appellant that, inasmuch as the information charged that the cattle were slaughtered in Pennington county, the verdict could not be sustained unless the proof showed that the slaughtering was done in that county. It does not appear that any objection was raised to the admission of evidence tending to show the killing of cattle by appellant outside of Pennington county; neither was there any request to the court that it should advise the jury to bring in a verdict owing to the failure of evidence to establish the slaughtering in Pennington county; nor was there any request made to the court that it instruct the jury to acquit the defendant unless it was found that the cattle were...
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