State v. Hall, 6988

Decision Date05 October 1931
Docket Number6988
Citation238 N.W. 302,59 S.D. 98
PartiesSTATE OF SOUTH DAKOTA, Respondent, v. MARY HALL, Appellant.
CourtSouth Dakota Supreme Court

MARY HALL, Appellant. South Dakota Supreme Court Appeal from Municipal Court, Sioux Falls, SD Hon. Harry A. Grant, Judge #6988—Reversed Theodore R. Johnson, Sioux Palls, SD Attorney for Appellant. M. Q. Sharpe, Attorney General Frank W. Mitchell, Assistant Attorney General, Pierre, SD Lucius J. Wall, State’s Attorney, Sioux Falls, SD Attorneys for the State. Opinion Filed Oct 5, 1931


In this case appellant was convicted on an information charging that she practiced deceit and fraud and used menace and threats with intent to prevent Anna Hart and Hazel Hart from appearing and giving testimony at a certain preliminary hearing then pending in the municipal court of Sioux Falls, wherein one Fred Westling was being prosecuted on a charge of rape in the second degree committed upon said Hazel Hart.

During the trial appellant called to the witness stand as a witness on behalf of appellant one Sophia Westling, mother of the said Fred Westling, and asked that the said Sophia Westling be sworn to testify in the case. Said witness was accompanied by counsel who, without waiting for said witness to be sworn, objected to her being sworn, or being called to testify in the case for the reason that she was jointly charged with the defendant and that to compel her to be sworn and testify would be compelling her to give testimony against herself and against her wishes. The following colloquy between counsel for the witness, counsel for appellant, the state’s attorney, and the trial judge, then took place:

Counsel for Appellant: I would like to ask the State’s Attorney if he is going to try her. If not, I see no harm in calling her.

“By the Court: You are representing her, Mr. Danforth?

“By Mr. Danforth: I represent her.

“By the Court: Mr. Danforth’s objection is proper.

Counsel for Appellant: Will that apply to anything I might ask her?

“By the Court: She is a defendant in this case and she is going to stand on her statutory grounds and Mr. Danforth’s objection is proper and sustained for that reason.

Counsel for Appellant: This will apply to any question I might ask her?

“By the Court: Yes.

Counsel for Appellant: And the same ruling?

“By the Court: Yes, joint information.

Counsel for Appellant: A joint complaint but no joint information.

“By the Court: I will rule that way, Mr. Johnson, the complaint in this case is against Mary Hall and Sophia Westling.

Counsel for the Witness: Mrs. Westling, I want to ask you this question. You wish to make this question and do not want to testify because of the pending action against you?

“By Mrs. Westling: Yes.

Counsel for Appellant: I want to ask the state if they intend to try it or dismiss?

“State’s Attorney: That has nothing to do with the issues in this case.

“By the Court: Witness Sophia Westling, having claimed her constitutional rights and refused to testify on the ground that her testimony might incriminate her by herself and also thru her counsel, George Danforth, which objection was sustained, the court makes no ruling on the offer now made by Attorney for Mrs. Hall, which offer is subsequent to the ruling heretofore mentioned other than to state that the court cannot permit Mrs. Westling to be compelled to testify over her objection.”

The appellant contends that the trial court erred to her prejudice in refusing to permit the witness to be sworn and testify. The claim of right to refuse to testify by the witness is based upon section 9 of article 6 of our State Constitution, which provides: “No person shall be compelled in any criminal case to give evidence against himself. ...” This section should be liberally construed so as to protect any person claiming its protection from incriminating himself while on the witness stand, but the privilege should not be abused nor used as an excuse for refusing to testify from mere caprice nor to avoid giving testimony that may be used against the witness in a civil action. Nor does this provision give any witness, not a party to the action, the right to refuse to be sworn. A witness cannot declare himself to be incompetent to testify as a witness, as was done in this case, but must be sworn and can claim his privilege only when he has been asked a question, the answer to which would tend to incriminate him. This matter was gone into at some length by the California Court in Ex parte Stice, 70 Cal. 51, 11 Pac. 459, 460, where we think the correct conclusion was reached. One Prewett was on trial for murder. Stice was charged with the same murder, but in a separate information. Stice was called as a witness, but refused to be sworn on the ground that his testimony would tend to convict himself. The court held him guilty of contempt of court and committed him to jail. He took the question to the Supreme Court on a writ of habeas corpus. That court, in sustaining the trial court, uses the following language: “It is no answer to a refusal to be sworn that the petitioner asserted at the time, as a reason for such refusal, that his testimony...

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1 cases
  • State v. Hall
    • United States
    • South Dakota Supreme Court
    • October 5, 1931
    ...59 S.D. 98238 N.W. 302STATEv.HALL.No. 6988.Supreme Court of South Dakota.October 5, 1931 ... Appeal from Municipal Court of Sioux Falls; Harry A. Grant, Judge.Mary Hall was convicted on an information charging practice of deceit and fraud and use of menace and threats with intent to prevent certain persons from appearing as witnesses, ... ...

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