State v. Hanley, 6755

Decision Date16 March 1931
Docket Number6755
Citation235 N.W. 516,58 S.D. 191
PartiesSTATE OF SOUTH DAKOTA, Respondent, v. PATRICK HANLEY, et al, Appellants.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge


L. E. Waggoner, Sioux Falls, SD

Attorneys for Appellants.

M. Q. Sharpe, Attorney General

R. F. Drewry, Asst Attorney General, Pierre, SD

Attorneys for the State.

Opinion filed Mar 16, 1931


Appellants were convicted of a robbery of a bank at Huron. This appeal is from the judgment and the order denying new trial. The errors assigned are: (1) The disallowance of the challenge to the panel; (2) twenty-six instances of alleged misconduct by the state’s attorney; (3) the refusal to give appellants’ version of an instruction on the maxim, falsus in uno, falsus in omnibus.

The disallowance of the challenge to the panel was not reversible error. In State v. Morse, Ann. Cas. 1918C 570, this court construed what is now section 4936, RC 1919, to require defendant to show prejudice resulting from disallowance of a challenge to the panel of petit jurors. But appellants contend that, under the decisions in State v. Fellows, and State v. Johnson, they are entitled to a reversal. In State v. Smith, 232 N.W. 26, this court recently pointed out the distinctions between the Morse Case and the cases relied upon by appellant, and followed the Morse Case. No prejudice to appellants has been shown through the irregularities of which they complain. Therefore no reversible error resulted therefrom.

As to the assignments relating to misconduct of the state’s attorney, a large number of the instances assigned as error consist of across-the-table questions, suggestions, and argument. Instead of exercising the inherent power to compel counsel to refrain from such improper conduct, the trial judge used only mild reproof in which, too often, objector and offender shared almost equally in the censure. In no small number of these across-the-table encounters appellantscounsel freely participated. The result of all this is a record which can be no source of pride either to counsel or to the trial judge. Respondent has deemed it necessary to supplement appellants’ 69-page abstract with 120 pages of additional statement. A careful reading of both the abstract and the settled record, thereby made necessary, leaves one in grave doubt as to whether the result was at all different than it would have been had the case been tried without any misconduct whatever. State v. Townley, 149 Minn. 5, 780, 17 ALR 253. Furthermore, when distributed through a six-day hard-fought trial, the instances of misconduct were less harmful than they appear when brought together in the assignments; and those assigned are materially reduced in number when those to which objections were sustained and those to which no objections were made are stricken out. The guilt of appellants was amply proven. A motion for a new trial was made, on the ground, among others, of the misconduct of counsel. In considering that motion for a new trial, the facts of misconduct, the provocation thereto, the effect thereof, the objections and rulings thereon, and actual atmosphere of the trial, were within the knowledge of the trial judge. That he denied the motion does not indicate complete satisfaction with the conduct of the trial, but only that, in his opinion, the effect was not prejudicial to appellants. The granting or refusing of a new trial for misconduct of counsel rests largely in the discretion of the trial court. As was said in Lindsay v. Pettigrew, 52 N.W. 873, 875: This court will not reverse the decision of the court below on a motion for a new trial, where ... the facts are fully within the knowledge of the court except in a case where this discretion is plainly misused.” In that case this court did reverse the decision of the court below. In the case at bar, while, as before stated, the record is not such as to be any source of pride either to counsel or to the trial court, after a painstaking examination of it, this court is not “clearly of the opinion that the facts as presented require us to reverse the judgment of the court below, and grant a new trial.” On the contrary, after considering not only the misconduct and other errors properly assigned, but the entire record, we are of the opinion that the learned trial judge neither misused nor abused his discretion in deciding that the misconduct did not require a new trial to be granted. State v. Albers, 219 N.W. 263.

Among the errors so assigned were some relating to the instruction of the jury. Appellant requested the court to instruct as follows:

“In passing upon the credibility of the various witnesses in this case, the court instructs that if you should find that any witness has wilfully testified falsely as to any material fact in the case, then it is your privilege, and you may, if you so desire, disregard his entire testimony except in so far as it may be corroborated by the testimony of other credible witnesses.”

Instead of instructing as above requested, the court instructed as follows:

“You are further instructed that if you believe that any witness has wilfully testified falsely to any material matter in this...

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