State v. Hammond

• Decision Date: 12 June 1901
• Citation: 14 S.D. 545,86 N.W. 627
• Parties: STATE OF SOUTH DAKOTA, Plaintiff in error, v. HARRY HAMMOND, Defendant in error.
• Court: South Dakota Supreme Court

14 S.D. 545, 86 N.W. 627 (1901)

STATE OF SOUTH DAKOTA,

Plaintiff in error,

v.HARRY HAMMOND,

Defendant in error.

South Dakota Supreme Court

Error in circuit court, Turner County, SD

Hon. E. G. Smith, Judge

Affirmed

John L. Pyle, Attorney General

J. W. Edmunds, State’s Attorney of Turner County

Hosmer M Keith, for plaintiff in error.

Alan Bogne, Jr., French & Orvis

Attorneys for defendant in error.

Opinion filed June 12, 1901

CORSON, J.

This case comes before us on writ of error sued out on behalf of the state. An information was filed against the defendant, charging him with the crime of having made an assault upon one Harry Williams with a deadly weapon, with intent to do bodily harm. The defendant was convicted, and subsequently, on his motion, a new trial was granted, and the object of this writ of error is to reverse that order. The motion for a new trial was made upon the following grounds:

“The court erred in the decision of questions of law arising during the course of the trial. That the verdict is contrary to law. That the verdict is contrary to the evidence. That the court misdirected the jury in matters of law.”

The order of the court granting a new trial does not disclose the ground upon which the same was granted, and hence, if there is any legal ground shown by the record for granting a new trial, or if it does not appear that the court, in the exercise of its discretion, abused that discretion, the order must be affirmed.

In the specification of errors annexed to the bill of exceptions it is first assigned that the court erred in sustaining the challenge of the state to the juror H. A. Thompson, over the objection of the defendant. The same assignment is made as to six other jurors who were excused by the court upon the same ground. The juror Thompson, being examined by counsel on the part of the state,stated that he was a juror in the case of the state against Emmett Williams, tried the previous week, involving the same affray, and heard all the evidence in that case; that, under that evidence, he formed an opinion as to whether or not the place where the altercation occurred between the complaining witness and the defendant was a highway, and still had that opinion. He was challenged for cause by the state. The challenge was resisted by the defendant, and, in reply to questions on the part of the defendant’s attorney, he stated that he had no opinion as to the guilt or innocence of the defendant; that he would try the issues in the case fairly and impartially, and decide the same according to the evidence and the law; and that evidence that the place was or was not a highway, he thought, would not affect his decision in any way. To a question propounded by the court, he answered that he had an opinion as to whether the place where the altercation occurred was or was not a highway, but that he had no opinion as to the guilt or innocence of the defendant. The challenge was sustained by the court; it stating that, from the statements of counsel, the court was of the opinion that the question of a highway might become a material issue in the case, and for that reason it sustained the challenge, to which the defendant excepted. Substantially the same proceedings were had in relation to the other six jurors. It will be observed that the juror Thompson states that he had no opinion as to the guilt or innocence of the defendant, and that, if selected as a juror, he would try the issues fairly and impartially, and would decide the case according to the evidence and the law, and that he did not think that evidence that the place where the assault was committed was or was not a highway would affect his decision in any way. It will thus be seen that the juror had no opinion as to the guilt or innocence of the defendant, but that he did have some opinion as to whether or not the place where the offense was alleged to have been committed was or was not a highway, but that he would not be influenced by that opinion. It is quite evident from the proceedings that the court, in speaking of “statements of counsel,” referred to the statements of the counsel for the state, and that it was not conceded by counsel for the defendant that such an issue would be presented in the case. It, however, appears from the record that no such issue was in fact raised upon the trial. It further appears that, by reason of these seven jurors being excused, the names of the jurors in the jury box were exhausted, and that the sheriff was required to summon a number of talesmen from whom a jury to try the case could be completed. It also further appears that neither the state nor the defendant exhausted all their peremptory challenges. It is urged on the part of the defendant that the court, in excusing these seven jurors, and thereby compelling the defendant to be tried by a jury consisting in part of talesmen, committed an error for which he was entitled to a new trial, especially in view of the fact that the question of highway or no highway was not an issue on the trial, and that therefore the granting of a new trial by the court was proper. It is contended on the part of the appellant, however,

(1) that the court committed no error in excusing these seven jurors; and,

(2) if there was error, it was cured by the fact that the defendant did not exercise all of his peremptory challenges, and did not object to the jury as finally impaneled.

In the view we take of the case, it is not necessary to decide the first question—as to whether or not there would have been error on the part of the court if an issue as to the highway had been raised on the...