State v. Hall

• Decision Date: 02 July 1902
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. THOMAS HALL, Plaintiff in error.
• Court: South Dakota Supreme Court

16 S.D. 6

91 N.W. 325

STATE OF SOUTH DAKOTA, Defendant in error, v. THOMAS HALL,

Plaintiff in error.

South Dakota Supreme Court

Error to Circuit Court, Hamlin County, SD

Hon. L. E. Gaffy, Judge

Affirmed

C. H. Winsor

Attorney for plaintiff in error.

A. W. Burt, Att'y Gen.

Alva E. Taylor, Asst. Att'y Gen.

Aubrey Lawrence, State’s Att'y, Hamlin County, SD

Attorneys for the state.

Opinion filed July 2, 1902

CORSON, J.

The plaintiff in error was convicted of the crime of murder, on an information duly filed by the state’s attorney of Hamlin county. He sued out a writ of error, and upon the hearing of the same in this court the judgment of the court below was reversed. The case is reported in State v. Hall,(1900). Upon the second trial he was again found guilty by the jury. and his case is now before this court upon the second writ of error for review. There are a large number of errors assigned in the record, but, as the learned counsel for the plaintiff in error relies upon four for the reversal of the judgment, this court will limit itself, in the consideration of the case, to those discussed by counsel.

The first error assigned is that the circuit court erred in its refusal to grant the motion of the accused to change the place of trial from Hamlin county. The motion was made upon the ground that a fair and impartial trial could not be had in that county. The motion for such change was based on section 7312, Comp. Laws, as amended by chapter 50, Laws 1891, in which it is provided that “a criminal action … may at any time before trial is begun, on the application of the defendant, be removed from the court in which it is pending … whenever it shall appear to the satisfaction of the court … that a fair and impartial trial cannot be had in such county or subdivision. …” It will be observed that, whenever “it shall appear to the satisfaction of the court” that a fair trial cannot be had, the court may order the person accused to be tried in another county. The motion in this case was supported by a number of affidavits, and resisted by about 100 affidavits on the part of the state. In the affidavits on the part of the accused were stated in detail, and at considerable length, the grounds of the motion, among which are that the body of the deceased, with certain wounds thereon, was seen by numerous citizens and residents of the county of Hamlin, and that ever since the arrest of the accused an intense prejudice and public feeling had been manifested against him by the people of said county; that the newspapers of said county had published articles strongly prejudicial to the accused; that much difficulty had existed in obtaining an impartial jury on the first trial of the cause; that a large number of the residents of said county were in attendance at the trial, and heard the evidence given therein; and that the case had been much discussed by the people of said county. It was shown, however, by the affidavits on the part of the state, that neither the accused nor deceased was a resident of the county, and that, in the opinion of the affiants, a fair and impartial trial could be had in that county; and several of the persons making affidavits stated that they had never heard the case discussed, and that they were severally competent to sit upon the jury. While undoubtedly there was some feeling, and possibly prejudice, against the accused, on the part of many persons in that county, caused by their belief that he was guilty of the crime charged, still we cannot say that the learned circuit court committed error in denying the motion. On the motion of the accused alleging prejudice on the part of the trial judge of that circuit, another circuit judge had been called in to try the case, who, we must presume, was entirely impartial and unbiased, and who, in passing upon the motion, for a change of venue, gave the affidavits on the part of the accused, as well as on the part of the state, full and careful consideration. And so far as the record in this case discloses, a fair and impartial jury was impaneled for the trial of the said cause. The learned counsel for the accused places much reliance upon the case of State v. Billings, 77 Iowa 417, 42 N.W. 456. The statement of facts in that case, on which a motion for a change of venue was based, showed not only a very strong feeling against the accused on the part of the people, but that the excitement was so great that there were threats of lynching. The supreme court of Iowa was not unanimous in its decision; the writer of the opinion stating that he did not concur in the view of the majority of the court, as he regarded it in conflict with the cases of State v. Read, 49 Iowa, 85, and State v. Perigo, 70 Iowa 657, 28 N.W. 452. The two cases cited present a state of facts which, in our opinion, are more strongly in favor of the change of venue than those in the case at bar; but the change of venue was refused in each case by the trial court, and the supreme court sustained the rulings of the court below on the ground that granting or refusing the motion was in the sound discretion of the trial court, and that the facts of the cases disclosed no abuse of that discretion. We cannot say, after a careful review of the affidavits, that the learned circuit court in the case at bar committed error in denying the motion of the accused to change the place of trial, or abused its discretion.

The next alleged error discussed by counsel is that the court erred in overruling the challenge to the panel of talesmen on the ground of bias of the officer who summoned them. The provisions of section 7347, Comp. Laws, are that:

“When the panel is formed from persons whose names are not drawn as jurors a challenge may be taken to the panel on account of any bias of the officer who summoned them which would be good ground of challenge to a juror. Such challenge must be made in the same form and determined in the same manner as if made to a juror.”

Section 7358 provides:

“Particular causes of challenge are of two kinds: (1) For such a bias as when the existence of the facts is ascertained, in judgment of law, disqualifies the juror, and which is known in this code as implied bias. (2) For the existence of a state of mind on the part of the juror, in reference to the case or either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.”

Section 7359 defines causes for which a challenge for implied bias may be taken. It is contended on the part of the accused that it was shown by an examination of the officer that the challenge was properly taken under the second subdivision of section 7358. It will be noticed by this subdivision that the challenge may be allowed or disallowed by the trial court “in the exercise of a sound discretion.” While it appeared from the examination of the officer who summoned the jurors that he had heard the evidence on the former trial, and had formed an opinion as to the guilt or innocence of the accused, he had never expressed any opinion, and stated that, if called as a juror in the case, he could try the case impartially, and render a verdict in accordance with the evidence that might be given on the trial. It affirmatively appears from the evidence that the officer had no actual bias or prejudice against the accused, and that no names of persons to act as jurors were given to him, and that he had had no conversation with any juror that he summoned with regard to the merits of the case, as will...