State v. Fulwider

• Decision Date: 14 February 1912
• Citation: 134 N.W. 807,28 S.D. 622
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. J. A. FULWIDER, Defendant and appellant.
• Court: South Dakota Supreme Court

28 S.D. 622, 134 N.W. 807 (1912)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v J. A. FULWIDER,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Lyman County, SD

Hon. Frank B. Smith, Judge

Reversed

Preston & Wagner

Attorneys for appellant.

Royal C. Johnson, Atty. Gen.

F. C. Wederath, State's Atty.

James Brown Asst. State's Atty.

Attorneys for for the State.

Opinion filed February 14, 1912

McCOY, P. J.

In this case defendant, who is the appellant, was convicted in the circuit court of grand larceny under an information charging the stealing of a saddle on the night 0f October 4, 1909, valued at $65, the property of one Danforth.

The principal assignment of error urged for a reversal is that the court permitted, over the objections and exceptions of defendant, evidence of another independent offense, other than that charged in the information on which defendant was then being tried. Stripped of unnecessary matter, the record shows that one Flynn, but for whose testimony no offense at all was shown, testified that about the 15th or 16th of September, 1909. he and one Van Schaak and this defendant stole from one Taft, in Brule county, a bunch of nine head of horses; that these horses were taken across to the west side of the Missouri river and kept in the hills in the vicinity of defendant's residence until about September 30th following, when he (Flynn) and Van Schaak and defendant drove said horses south and stopped with them near Gregory the first days of October; that thereafter, during the first part of October, he (Flynn) took said horses farther south, down near the Nebraska line, and disposed of them, and then returned to his place of residence in Lyman county, near that of defendant.

The complaining witness, Danforth, testified that his saddle was taken from his barn on his premises, one mile south of the residence of defendant, on the night of November 4, 1909. The testimony shows that the city of Chamberlain is some 20 miles north of defendant's residence, and that the city of Gregory is about 24 miles south of defendant's residence. On the morning of November 4th, defendant left home on horseback, went north and crossed the river, went to Van Schaak's place, and rode to Chamberlain with Mr. and Mrs. Van Schaak. Defendant testified that he went to Chamberlain to procure medicine for his wife, who was then confined to her bed, having, on the 2d day of November, given birth to a child; that he returned from Chamberlain with the Van Schaaks, and then proceeded homeward on horseback; that Flynn, who was at Van Schaak's, also accompanied defendant on his homeward journey; that when they rived at defendant's residence Flynn proceeded on southward, and that was the last defendant saw of him at that time. Flynn testified that when defendant and Van Schaak returned from Chamberlain on November 4th they told him that Taft had found his horses that were stolen from him in September, and that he (Flynn) should leave the country, as he was liable to be caught; that it was then agreed that he (Flynn) should leave the country immediately; that he should proceed on horseback down into Nebraska; that Van Schaak loaned him his saddle; that it was agreed that he was to leave Van Schaak's saddle at Gregory, and that defendant would later procure the same and return it to Van Schaak; that he (Flynn) had a saddle of his own at Herrick's place, somewhere near Gregory. Flynn further testified that when he arrived at defendant's residence that evening he stated to defendant that he would leave the Van Schaak saddle with defendant, and would ride bareback down to where his own saddle was, and not put defendant to the trouble of going to Gregory after, the Van Schaak saddle; that defendant then said, "Wait awhile, and I will get you a saddle;" that defendant then rode away, and in about half an hour returned with a saddle, which answered the description of the Danforth saddle, and gave it to him (Flynn); that he then proceeded on his way down into Nebraska, where he later sold the saddle given to him by defendant.

All this testimony of Flynn in regard to the stealing of the Taft horses and as to defendant going and procuring the saddle for him, and all the conversation about Flynn going to leave the country, was denied by defendant. It is the contention of the state that the evidence relating to the theft of the Taft horses was properly admissible for the purpose of showing intent and motive on the part of defendant in stealing the saddle of Danforth. We are of the opinion that this contention is not tenable. Under the circumstances of this case, the evidence in relation to the theft of the Taft horses could throw no possible light. upon the question of intent. If defendant went to the barn of Danforth in the nighttime and took and carried away the saddle of Danforth, under the circumstances related by the witness Flynn, then defendant would not be heard to say that he did not intend to steal.

If defendant admitted the taking, but claimed that the saddle belonged to him, and that he thought the saddle was his own property, that would constitute a good defense, although the saddle did in fact belong to Danforth, providing the evidence was such...