State v. Garrington
| Decision Date | 31 August 1898 |
| Citation | 76 N.W. 326,11 S.D. 178 |
| Parties | STATE v. GARRINGTON. |
| Court | South Dakota Supreme Court |
Error to circuit court, Minnehaha county; Joseph W. Jones, Judge.
James A. Garrington was convicted of murder, and he brings error. Reversed.
D. R Bailey, for plaintiff in error. C. P. Bates and P. J. Rogde for the State.
Defendant occupied a small frame building, on Maine avenue, in Sioux Falls, consisting of three rooms, all on the ground floor. On the morning of December 8, 1897, two policemen entered the place for the purpose of arresting certain disorderly persons, supposed to be harbored therein, when they discovered the dead body of Alfred Erikson lying on the floor of one of the rear rooms, attended by unmistakable evidence that he had been killed in the building. Defendant, who was in the front room when this discovery was made, was immediately taken into custody, and in due time was tried and convicted of the crime of murder; the jury designating in their verdict that he should suffer death.
In impaneling the jury, the state's attorney, against defendant's objection, was permitted to inquire of each venire man whether he entertained any conscientious scruples against inflicting the death penalty in cases where the prosecution relies for conviction upon circumstantial evidence, but the court declined to regard an answer to such inquiry as cause for challenge. Our statutes (Comp. Laws) contain the following
When section 7359 was adopted as section 332 of the Code of Criminal Procedure of 1877, section 6449 contained only these words: "Every person convicted of murder shall suffer death for the same." Pen. Code 1877, § 249. Then a verdict of guilty necessarily involved the death of the accused, and conscientious scruples against capital punishment precluded a juror from finding a defendant guilty; but as the law now stands the entertaining of such opinions does not have that effect, and is not a cause for challenge. This is true whether the evidence relied upon for conviction be circumstantial or direct. The general rule governing the examination of persons called as jurors is thus stated by Mr. Thompson: "Within reasonable limits, each party has a right to put pertinent questions to show, not only that there exist proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will exercise his right of peremptory challenge." 1 Thomp. Trials, § 101. This is a fair expression of the practice which has long prevailed in this jurisdiction in both civil and criminal trials, and we can discover no valid reason why either party in a murder trial should not be permitted to ascertain the opinions of jurors concerning capital punishment merely for the purpose of determining upon whom to exercise peremptory challenges. Such, in effect, was the course pursued by the court below, and it meets with the approval of this court.
The prosecution introduced testimony, against the objection of defendant, showing that on the day following the commission of the crime a small tobacco sack was found lying upon a work bench in the front room of the building, occupied by defendant, and wherein the body of deceased was discovered. Testimony was also introduced, against defendant's objections, showing that some weeks before, at Gary, S. D., deceased had a similar tobacco sack, in which he kept small quantities of money. The sack found in the building was received in evidence against defendant's objection, and he assigns the rulings upon the introduction of all this evidence as error. From the discovery of the crime until the discovery of the tobacco sack several persons visited the premises previously occupied by defendant, and it is possible one of these persons might have placed the sack where it was found; but such inference is neither fair nor reasonable, in view of all the evidence, as the premises were guarded with as great care as is usual under like circumstances. The identity of the sack found in the building with the one seen in deceased's possession at Gary was a question for the jury, and it was certainly proper to show the condition and contents of the building wherein the crime was committed. This evidence was properly received.
The crime was discovered between 12 and 1 o'clock in the morning. At 4:45 of the preceding afternoon deceased was at a store within two blocks of where the crime was committed, and was seen to cross the street, going in the direction of defendant's place. A witness for the government was allowed, against defendant's objection, to testify that deceased told him, immediately before leaving this store, that he was going to Garrington's. This ruling is supported by high authority, and meets with the approval of this court. 1 Greenl. Ev. § 108; Hunter v. State, 40 N. J. Law, 495; State v. Dickinson, 41 Wis. 299; State v. Howard, 32 Vt. 380; State v. Hayward (Minn.) 65 N.W. 63.
Harry Saunders, a witness on the part of the government, was allowed to testify that defendant called at a store where he was clerking, between 5 and 6 o'clock in the afternoon preceding the discovery of the body, and purchased certain articles, for which he gave a $5 bill, and received $4.80 in change. The objections to this evidence were not well taken. The acts of defendant thus disclosed occurred during the eight hours intervening between the time Erikson was...
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