State v. Frazer

• Decision Date: 21 May 1909
• Citation: 121 N.W. 790,23 S.D. 304
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. WILLIAM K. FRAZER, Defendant and appellant.
• Court: South Dakota Supreme Court

23 S.D. 304, 121 N.W. 790 (1909)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v WILLIAM K. FRAZER,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. William G. Rice, Judge

Reversed

Chambers Kellar, Thomas Harvey, and Robert C. Hayes

Attorneys for appellant.

S. W. Clark, Atty. Gen.

Robert P. Stewart, Skate’s Attorney, for the State.

Opinion filed, May 21, 1909

(See 22 S.D. 291, 117 N.W. 366)

HANEY, P. J.

The information charges an assault with intent to kill, upon one Isaac Trotter. It is contended the court erred in allowing a witness to testify whose name was not indorsed on the information. The exception is thus stated:

“Isaac Trotter was then called and sworn as a witness on behalf of the state. Thereupon the defendant objected to the giving of any testimony by this witness on the ground that his name is not indorsed on the information, and that the name of this witness was necessarily known to the state’s attorney at the time of filing said information. Said objection was overruled by the court, and the defendant duly excepted.”

The statute, as revised in 1903, only requires the names of witnesses known to the state’s attorney, when the information is filed, to be indorsed thereon. Rev. Code Cr. Proc. § 206. The name “Isaac Trotter” was not indorsed. One who objects to a witness because his name is not indorsed should show that the witness was known to the state’s attorney when the information was filed. State v. King, 9 S.D. 628, 70 N.W. 1046. There is nothing in the record, save the identity of names, tending to identify the witness as the person alleged to have been assaulted. The objection itself did not assert that the witness and the assaulted person were the same. The court was bound to assume that the state’s attorney had properly performed his official duties. The record discloses nothing opposed to this presumption, except the inference arising from the identity of names. The existence of the fact upon which the objection was predicated was not shown when the ruling was made, and such ruling could not be rendered erroneous by the subsequent disclosure of such fact. State v. Vey, 21 S.D. 612, 114 N.W. 719.

The person assaulted, called as a witness on behalf of the state, was not allowed to answer the following questions on cross-examination: “I will ask you if you did not have some trouble, some words with Mr. Frazer, several days before this shooting, about Mr. Frazer’s dog? I will ask you Mr. Trotter, if you did not say to Mr. Frazer, the defendant, before this shooting, that you intended to turpentine his dog?” It is claimed this testimony should have been received for the purpose of showing the nature and extent of the witness’ feeling and bias against the defendant.’ The witness had testified that his feeling toward the accused was not friendly; that he had never any particular use for him. While it may be reversible error not to permit any cross-examination as to the feeling or bias of a witness, the extent of such cross-examination rests in the sound discretion of the trial court. State v. Mulch, 17 S.D. 321, 96 N.W. 101; 3 Jones, Ev. § 830. There was no abuse of discretion in this instance. Moreover, the defendant could not have been prejudiced, as there was no dispute as to the facts concerning which this witness’ testimony was given.

A witness on behalf of the state, having testified to the assault, was asked these questions on cross-examination: “I will ask you if you had a conversation in the presence of Isaac Trotter, and in the presence of Arthur Hansen, in the early morning of February 6th, along about 1...