State v. Godlasky

• Decision Date: 15 November 1923
• Docket Number: 5217.
• Citation: 195 N.W. 832,47 S.D. 36
• Parties: STATE v. GODLASKY.
• Court: South Dakota Supreme Court

195 N.W. 832

47 S.D. 36

STATE v. GODLASKY.

No. 5217.

Supreme Court of South Dakota

November 15, 1923

Appeal from Circuit Court, Beadle County; W. N. Skinner, Judge.

Frank Godlasky was convicted of manslaughter, and he appeals. Affirmed.

Harold O. Mulks, of Chicago, Ill., and C. A. Kelley, of Huron, for appellant.

Byron S. Payne, Atty. Gen., and Charles P. Warren, State's Atty., of Huron, for the State.

ANDERSON P. J.

This is an appeal by appellant, Frank Godlasky, from a judgment and sentence by the circuit court of Beadle county by which appellant was sentenced to the state penitentiary of this state for a period of 15 years pursuant to a verdict of a jury finding him guilty of manslaughter, on an information charging appellant and one John Doe with the murder of one William D. Henderson. The information charging that the fatal blow was struck by one John Doe, and that appellant being present with a premeditated design to cause the death of said Henderson, then and there aided and abetted said Doe in committing said offense.

On July 15, 1921, William D. Henderson, now deceased, accompanied by companions Robert Duncan and John Wright, arrived at Wolsey this state. They were on their way to the northern part of this state, where they expected to obtain employment in the harvest fields. Shortly prior to this time they had been working at Casper, Wyo.; and on this day had arrived from the west on a freight train on the Chicago & Northwestern Railway at Wolsey, 3 o'clock p. m. While standing near where the railroad tracks of the Chicago & Northwestern intersect the Chicago, Milwaukee & St. Paul Railway waiting to board the freight going north, deceased and his two companions were approached by appellant and his companion. The deceased and his companions were asked by appellant and his companion whether they had been working in this vicinity. To which they replied that they had not, but just came from Wyoming. While this conversation took place, the north-bound freight on the Chicago, Milwaukee & St. Paul Railway was pulling out of Wolsey. Deceased and his companions got onto a flat car which was the second car from the engine, and defendant and companion got on a box car being the third from the engine. Deceased and companions were the sole occupants of this flat car. While the freight train was moving slowly northward, appellant and companion left the box car and boarded the flat car where deceased and companions were. Appellant and companion first approached Robert Duncan, another companion of deceased, inquiring if he (Duncan) had a "red card," to which Duncan replied he did not. Appellant then seized Duncan by throwing his arm about his neck. Appellant's companion approached deceased, and demanded of him whether he had a "red card," and seized deceased by the right arm and immediately pulled a gun out of his pocket and pointed the same as the deceased. Appellant thereupon released his hold on Duncan and came to the assistance of his companion, and seized the deceased by the left arm. While thus attacked by appellant and his companion, deceased moved backward until he reached the side of the car, when he suddenly jerked loose from appellant's hold, which he and appellant's companion had upon him, and proceeded to jump from the moving train. The companion of appellant shot and instantly killed the deceased. Evidence shows that deceased and his two companions were unarmed; that appellant's companion had his revolver pointed at deceased during the entire time of the assault. When the shot was fired, the two companions of deceased jumped from the moving train, but on the side opposite from where deceased had fallen, while appellant and his companion remained on the car. Shortly thereafter the sheriff of the county arrived. The sheriff, together with two of deceased's companions, pursued the train in an automobile, overtook the train at Tulare. It was then dark. Immediately upon arrival all passengers on the train were brought, one by one, in front of the lights of the automobiles, and in the presence of Duncan and Wright, for identification. Both Duncan and Wright positively identified the appellant as the man who had participated in the assault, and who aided and assisted his companion at the time of the killing of deceased. One means of identification was a very conspicuous bump on the back of appellant's head. The companion of appellant was not found on the train. Appellant is 22 years, and a member of the I. W. W., having joined this organization under the name of Frank Daring.

By assignment 1 appellant predicates error on instruction to the jury:

"The court instructs the jury that a design to effect death may be inferred from the fact of the killing, unless the circumstances raise a reasonable doubt whether such design exists."

By Mr. Kelley: "Defendant objects to the state's proposed instruction No. 1 upon the grounds that the same does not state the law of the state of South Dakota, even though a statute might appear to sanction such an instruction, and if such law exists it is unconstitutional, invading the province of the jury."

Justice Jones of the Supreme Court of Wisconsin, in his Blue Book on Evidence (volume 1, § 9a), clearly points out the distinction between an inference and a presumption. The appellant has failed to recognize this distinction in his argument relating to this assignment. Justice Jones further says:

"An inference is nothing more than a permissible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by the jury."

Justice Jones further says:

"The jury in the case of an inference are at liberty to find the ultimate fact one way or the other as they may be impressed by the testimony."

Defendant being tried for homicide on the theory of having aided and abetted his companion in the killing of Henderson, it was incumbent upon the state...