State v. Guffy

• Decision Date: 06 December 1926
• Docket Number: 5650.
• Citation: 210 N.W. 980,50 S.D. 548
• Parties: STATE v. GUFFY.
• Court: South Dakota Supreme Court

210 N.W. 980

50 S.D. 548

STATE v. GUFFY.

No. 5650.

Supreme Court of South Dakota

December 6, 1926

Appeal from Circuit Court, Butte County; James McNenny, Judge.

William J. B. Guffy was convicted of larceny, and he appeals. Reversed.

Gates P. J., and Sherwood, J., dissenting.

Harry P. Atwater, of Sturgis, for appellant.

Buell F. Jones, Atty. Gen., and Bernard A. Brown, of Pierre, for the State.

POLLEY J.

The appellant in this action is the William J. B. Guffy named as codefendant in the information in State v. Peifer (S D.) 207 N.W. 547. The facts proved are generally the same in both cases, though there are some facts shown in this record that do not appear in the Peifer Case, and some of the facts shown in that case have no application to the appellant in this case. But the facts stated in the Peifer Case will not be repeated here, except where necessary to understand the contentions made by appellant.

The evidence tending to connect appellant with the larceny of the Karrels steer is wholly circumstantial, for none of the witnesses claim to have seen appellant in possession of the steer, or to have seen him help butcher it, or ever to have seen him on the Peifer ranch. It is a fact, though, that a black saddle horse resembling one appellant had been riding and a saddle resembling one he had recently been using, were found at the Peifer ranch on the evening of the day of his arrest; and it is also a fact that he borrowed the Ford car in which he was hauling the beef to Sturgis when arrested from a farmer in the immediate neighborhood of the Peifer ranch.

Numerous assignments of error are predicated upon the admission and exclusion of testimony at the trial. Over proper objection by appellant, the state was permitted to prove that the license plates on the car appellant was using bore different numbers. How this fact was material is not suggested. The car did not belong to appellant. It was not shown that he procured the license plates, or that he knew they bore different numbers. Yet the admission of this testimony by the court over objection was equivalent to telling the jury that this fact was a circumstance tending to connect appellant with the larceny of the steer in question.

When the officers searched the house on the Peifer ranch, they found a pair of shoes and a pair of overalls, both more or less smeared with fresh blood. Without any showing that these articles belonged to appellant, or that he had ever seen or used them, the court over proper objection admitted them in evidence. These articles in no way tended to connect appellant with the larceny complained of, and should not have been received in evidence. They were wholly immaterial to any issue in the case, but, like the license plates on the car, had a tendency to create a guilty atmosphere about the appellant, and seriously interfere with his having a fair trial.

One of the officers who arrested appellant and who searched the Peifer premises testified that in the blacksmith shop on the Peifer place they found a piece of fresh beef hide; then overhead on some rafters they found another piece of fresh hide about three feet long and four or five inches wide. One of the witnesses went up to take down the block and tackle. He found, and threw down, a piece of hide rolled up in a little roll. It was about fourteen inches long, and eight or ten inches wide, and had a brand on it, but what the brand was is not disclosed. Then they found another piece of hide rolled up in the cook stove. This piece of hide was also branded. For some reason or other they assumed that this piece of hide came off from the beef that appellant had in his car when arrested. This piece of hide was preserved in alcohol and introduced in evidence at the trial, and in connection with this exhibit the following proceedings were had:

"Now, Mr. Westgate, I wish you would take this Exhibit 13 and point out to the jury the mark or brand upon it. (Objected to as not the best evidence. Overruled.)

By the Witness: There is the circle (indicating).

By Counsel for Defendant: We move to strike the answer out as not responsive, and the opinion and conclusion of the witness. We object to its being constantly repeated by the prosecution for the purpose of getting it before the jury and assign it as misconduct.

By the Court: That is the first time I have heard it.

Counsel for the State: Just answer the question, Mr. Westgate, which

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