State v. Finder

• Decision Date: 14 July 1897
• Citation: 72 N.W. 97,10 S.D. 103
• Parties: STATE v. FINDER.
• Court: South Dakota Supreme Court

72 N.W. 97

10 S.D. 103

STATE v. FINDER.

Supreme Court of South Dakota

July 14, 1897

Error to circuit court, Hughes county; A. W. Campbell, Judge.

From a conviction of an assault, Fred Finder brings error. Affirmed.

Fuller J., dissenting.

John F Dillon and John R. Sutherland, for plaintiff in error. T. P Estes, State's Atty., D. W. March, and Melvin Grigsby, Atty. Gen., for the State.

CORSON P. J.

The plaintiff in error was indicted for an assault with a dangerous weapon with intent to do bodily harm, and was by a jury convicted of an assault upon which he was adjudged to pay a fine of $50. He thereupon sued out a writ of error, upon which the case is now before this court. Prior to the trial the defendant made and filed an affidavit of prejudice on the part of Judge Gaffy, judge of the Sixth circuit, and, under the provisions of section 1, c. 50, Laws 1891, he called in Judge Campbell, of the Fifth circuit, to try the case. At the conclusion of the trial, and after the jury had retired to deliberate upon their verdict, Judge Campbell adjourned the court until the following morning, and then left for his home, in Aberdeen. On the following morning, Judge Gaffy opened the court, and received the verdict of the jury, and adjourned the court until a later day, when Judge Campbell returned to Pierre, and entered judgment upon the verdict.

The questions presented that we deem necessary to consider are: (1) Was the jury authorized to find the defendant guilty of a simple assault under the indictment? (2) Did the fact that Judge Gaffy received the verdict of the jury constitute reversible error? (3) Could the jury, under the evidence, find the defendant guilty of a simple assault? (4) Did the trial court err in permitting the complaining witness to exhibit to the jury her hand, claimed by her to have been injured by a blow inflicted by the defendant?

The learned counsel for the defendant contend that the circuit court had no original jurisdiction to try a party for an assault or an assault and battery, and hence the jury could only find the defendant guilty of the crime charged in the indictment or some indictable offense included in such charge over which the circuit court had jurisdiction. They therefore insist that the charge of the court in which it instructed the jury that they could find defendant guilty of an assault was erroneous, and the verdict of the jury a nullity, upon which no judgment could be pronounced. Undoubtedly, under the old common-law rule, the contention would be correct, but under the constitution and laws of this state that rule is not applicable. The doctrine contended for finds support in the decisions of some of the older states, but in states having statutes similar to our own the common-law rule has been deemed to be abrogated. Com. v. Drum, 19 Pick 479; Foley v. State, 9 Ind. 363; State v. O'Kane, 23 Kan. 244; State v. Shepard, 10 Iowa, 126; State v. Graham, 51 Iowa, 72, 50 N.W. 285; Hunter v. Com., 79 Pa. St. 503. In the latter case the question was very fully considered by the supreme court of Pennsylvania, and that court seems to have arrived at the conclusion that the common-law rule was abrogated in that state without the aid of statute. In that case, Paxson, J., speaking for the court, says: "The plaintiff in error was indicted for a felonious assault. The jury convicted him of assault. A motion in arrest of judgment was made, which was overruled by the court below, and judgment entered on the verdict. This is assigned here for error. The record presents the single question whether, upon an indictment charging a felony, the jury may acquit of the felony, and convict of the constituent misdemeanor. We are in no doubt as to the rule at common law. It was long held in England that, upon an indictment for a felony, there could be no conviction for the minor offense of misdemeanor. Rex v. Cross, 1 Ld. Raym. 711, 3 Salk. 193; 2 Hawk. P. C. c. 47, § 6; 1 Chit. Cr. Law, 251, 639. The reason of the rule was that persons indicted for misdemeanors were entitled to certain advantages at the trial, such as the right to make a full defense by counsel, to have a copy of the indictment, and a special jury,--privileges not accorded to those indicted for a felony. It is apprehended these reasons no longer exist in England; at least, not to the extent they did formerly, for by St. 1 Vict. c. 85, § 11 (Lord Deman's Act), the rule itself has been abolished, and now, upon a bill charging a felony, a conviction may there be had for a constituent misdemeanor. It is clear that the reason of the rule has no application in this state. On the contrary, the advantages, if any, upon the trial, are all in favor of those charged with a felony. By the merciful provisions of the criminal law, the higher and more atrocious the crime, the more numerous are the safeguards thrown around the accused, and more jealously does the law guard every legal right to which he is entitled." The court then proceeds to an examination of the authorities, and concludes that the old common-law rule no longer exists in that state. Section 7429, Comp. Laws, provides: "The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or an...