State v. Flathers

• Decision Date: 22 September 1930
• Docket Number: 6889.
• Citation: 232 N.W. 51,57 S.D. 320
• Parties: STATE v. FLATHERS.
• Court: South Dakota Supreme Court

232 N.W. 51

57 S.D. 320

STATE v. FLATHERS.

No. 6889.

Supreme Court of South Dakota

September 22, 1930

Appeal from Circuit Court, Kingsbury County; Frank R. Fisher, Judge.

Ronald Flathers was convicted of murder, and he appeals.

Affirmed.

Kirby Kirby & Kirby and John Lynch, all of Sioux Falls, and C. C Fritzel, of De Smet, for appellant.

M. Q Sharpe, Atty. Gen., Benj. D. Mintener, and Frank W. Mitchell Asst. Attys. Gen., William H. Warren, State's Atty., of De Smet, A. K. Gardner, of Huron, and Harry J. Eggen, of De Smet, for the State.

MISER C.

In 1924 appellant began taking Doris Rounds to social affairs. In the summer of 1927, when she showed a preference for the company of other young men, he showed his resentment by threats and in other ways. On November 24, 1927, appellant took his sister to a dance at Iroquois and there saw Earl Frahm dancing with Doris. About 11 o'clock, appellant took his sister home and returned to the dance taking with him the revolver with which he later did the shooting. When Frahm and Doris left the dance and crossed the street to Legion Hall where supper was being served, he followed them. In the entrance way thereto he shot four times. One shot killed Frahm, one wounded Doris, one went wild, and one wounded appellant himself.

The information on which appellant was convicted of murder contained two counts, each charging murder. Each count charged the shooting of a revolver at Earl Frahm whereby he was mortally wounded and thereafter died; but in the first count it was charged that this was done by appellant with a premeditated design to effect the death of said Earl Frahm; whereas, in the second count, it was charged that it was done with the premeditated design to effect the death of Doris Rounds.

The information was drawn according to chapter 143, Laws 1927, which provides: "The *** information may charge two or more *** different statements of the same offenses *** under separate counts. *** The prosecution shall not be required to elect between different offenses or counts set forth in the *** information. ***"

The information sets forth different statements of the same offense, namely, the murder of Earl Frahm. Section 4012, Rev. Code 1919, defines "murder" as follows: "Homicide is murder in the following cases: 1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being. 2. *** 3. ***"

Appellant contends that his demurrer to the information should have been sustained because chapter 143, supra, violates section 21, art. 3, S.D. Const., providing that "no law shall embrace more than one subject, which shall be expressed in its title." Chapter 143 dealt with only one general subject, namely, the method of procedure in making criminal charges against a person accused of crime. Every part of the statute is germane to the subject. Appellant assigns no sufficient reason for holding the statute unconstitutional.

Appellant also claims that, under the court's instructions, six jurymen might have believed appellant shot Earl Frahm with intent to kill Earl Frahm, and six other jurymen might have believed that appellant shot Earl Frahm with intent to kill Doris Rounds; and, under the instructions, a verdict might have been rendered of guilty without the twelve minds meeting as to the intent, a necessary element of the crime. In support of this claim of error, appellant cites State v. Washington, 242 Mo. 401, 146 S.W. 1164 and State v. Jackson, 242 Mo. 410, 146 S.W. 1166, both of which are Missouri cases, and State v. Shanley, 20 S.D. 18, 104 N.W. 522, 524. However, in State v. Geist, 196 Mo.App. 393, 195 S.W. 1050, 1051, 199 S.W. 1041, the Missouri court, while following the reasoning of the two cases above cited, said: "If there had been but one offense in controversy and an uncertainty as to which of two persons were the purchasers, then an instruction that if the jury believed the sale was made to either, they should find the defendant guilty, would be proper. For, in such case, all of the jury could unite in a verdict that the offense was committed and find the defendant guilty, though they might not agree as to which of the two persons the sale was made to."

In the case at bar there was but one offense charged, namely the murder of Earl Frahm. In State v. Shanley, supra, the indictment charged the defendant with shooting at one Striegel with intent to kill the said Striegel. The court charged the jury that they might find the defendant guilty as charged in the indictment if satisfied beyond a reasonable doubt that he shot at Striegel with intent to kill Striegel or any other person. After quoting the statute defining the offense for which defendant was tried, this court said: "Neither the letter nor spirit of our statute restricts the intent to the person who is shot at or shot. So, if the defendant shot at Striegel with intent to kill him, the marshal, or any other person, he was guilty of the crime charged, and the only question is whether the allegations of the indictment will sustain a conviction based upon evidence disclosing an intent to kill any person other than Striegel. *** This is clearly one of those cases contemplated by our statute (Rev. Code Cr. Proc. § 224), which required an indictment containing different counts-one alleging intent to kill Striegel, another intent to kill the marshal, and so on."

In the case at bar the state filed just such an information as this court in State v. Shanley said should have been filed in that case. The precedent of the Shanley Case did not require an instruction in the case at bar that all twelve of the jurors should agree that appellant intended to kill Earl Frahm, or all twelve of the jurors should agree that appellant intended to kill Doris Rounds, and so specify in their verdict before they could find him guilty of the murder of Earl Frahm whom he did...