State v. Erickson

• Decision Date: 27 April 1914
• Docket Number: No. 3452.,3452.
• Citation: 146 N.W. 1071,33 S.D. 638
• Parties: STATE v. ERICKSON.
• Court: South Dakota Supreme Court

33 S.D. 638

146 N.W. 1071

STATE

v.ERICKSON.

No. 3452.

Supreme Court of South Dakota.

April 27, 1914.

Appeal from Circuit Court, Meade County; W. G. Rice, Judge.

Louis Erickson was convicted of cattle theft, and he appeals. Reversed.John T. Milek and Harry P. Atwater, both of Sturgis, for appellant.

Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty. Gen., and Claude C. Gray, State's Atty., of Sturgis, for respondent.

WHITING, J.

Appellant was convicted of stealing eight head of cattle. From the judgment of conviction and order denying a new trial, he has appealed. Upon this appeal he urges three matters: (1) Lack of proof of venue; (2) insufficiency of the evidence to justify verdict; (3) right of new trial upon ground of newly discovered evidence. The first contention is wholly without merit.

[1] The state claims that the evidence directly connects the defendant with the taking of the property, and furthermore that the property was found in his possession soon after it was taken, which possession was not satisfactorily explained. There can be no question but that the cattle in question were stolen by some one, and the jury were perhaps justified in inferring that certain members of appellant's family were parties to the theft, as there was some slight evidence showing exercise of dominion over these cattle by sisters of appellant. The only evidence tending to connect appellant with the actual taking of the cattle is the evidence of one Lodge, who testified that, while working on the top of a building, he saw, at a distance of some three-quarters of a mile, two parties, one a man the other a woman, riding horseback; that he recognized them as appellant and one of his sisters, but which sister he could not say; that, from the same point, he afterwards saw, at a distance of over a mile, two parties, whom he took to be the same parties, driving “five or six or seven head of cattle.” We find no evidence from which it could be fairly presumed that this particular bunch of stock was the stock stolen, for all the evidence shows there may have been a dozen bunches of stock driven along this road any day; furthermore, the number of cattle was different. Common experience teaches that, unless there was some striking peculiarity in appellant's style of riding, it would be absolutely impossible for one, at a distance of three-fourths of a mile, to recognize him. Lodge did not attempt to explain how it was that he was able to recognize appellant at this distance. Conceding that the witness testified honestly, and that he fully believed these parties to be appellant and one of his sisters, yet we do not believe a person should be convicted of a crime upon as weak evidence as this, unless there is strong corroboration. There is no evidence that appellant was seen by any one at or about the place where these cattle were afterwards found, from the time the cattle were stolen until several days after they were found. While it is a fact that there was evidence showing that the cattle were found in a...