State v. Harbour

• Decision Date: 25 January 1911
• Citation: State v. Harbour, 129 N.W. 565, 27 S.D. 42 (S.D. 1911)
• Parties: STATE v. HARBOUR.
• Court: South Dakota Supreme Court

129 N.W. 565

27 S.D. 42

STATE v. HARBOUR.

Supreme Court of South Dakota

January 25, 1911

Appeal from Circuit Court, Pennington County.

Mary Harbour was convicted of manslaughter in the second degree and from the judgment and order denying a new trial she appeals. Affirmed.

Frank D. Bangs, for appellant.

S. W Clark, Atty. Gen., and Chauncey L. Wood, State's Atty for the State.

CORSON J.

Upon an information duly filed by the state's attorney of Pennington county, charging the defendant with the crime of murder in the killing of one Rose Adams on the 6th day of March, 1908, by shooting her with a revolver, she was convicted of the crime of manslaughter in the second degree, and, from the judgment and order denying a new trial, she has appealed to this court.

Numerous errors are assigned, but the Attorney General objects to the consideration of these errors for the following reasons: (1) The bill of exceptions must be disregarded, as it appears from the abstract herein that said bill of exceptions as settled contains no specifications of error. (3) The appellant does not predicate error on the order overruling her motion for a new trial, as the overruling of same is not assigned as error, and the record, therefore, does not present for review the question of the sufficiency of the evidence to support the verdict. (4) No exceptions have been taken and preserved by the defendant to any ruling of the court in the admission or exclusion of evidence on the trial. Therefore no alleged errors of law as to the rulings of the court on the trial can be reviewed.

We are inclined to take the view that the Attorney General is right, and that under the record presented to us in this case we cannot properly review the evidence or the alleged errors of law presented by the assignment of errors on the part of the defendant. An examination of the bill of exceptions as contained in the abstract discloses the fact that there are no specifications of the particulars in which the evidence is insufficient to sustain the verdict or other decision. Neither is there any statement specifying the particular errors in law upon which the party will rely for a reversal of the judgment. It is further disclosed by the abstract that no exceptions were preserved by the defendant to any ruling made by the court in the rejection or admission of evidence, and it is further disclosed by the abstract that there is no assignment of error that the court erred in overruling the defendant's motion for a new trial. The only exceptions appearing to have been taken and preserved by the defendant are to the refusal of the court to give certain instructions requested on the part of the defendant. Instructions Nos. 1, 2, 3, 5, 6, and 7 requested were fully covered by the court in its charge to the jury on its own motion. Instruction No. 4 was properly refused for the reason that it assumes that "the evidence relied upon by the state is fully circumstantial." This assumption was clearly not sustained by the record.

It is true that there was no person present at the time of the alleged shooting, except the defendant and the deceased; but there was evidence tending to prove that the defendant stated immediately after the shooting that she fired the shot that resulted in the death of the deceased, and in her testimony in her own behalf she says, "I did not shoot her intentionally or willfully." It is disclosed by the evidence that the deceased, generally known as Rose Adams was taken from an orphan asylum by the defendant when she was about 18 months of age; that she had always lived with the defendant up to the time of her death, at which time she was between 17 and 18 years of age; that, on the day of her death, she came home from school after 4 o'clock and very soon thereafter the evidence tended to prove that there was loud talking in the apartments of the defendant; and that soon thereafter two shots were fired, the ball from one of which penetrated the left temple of the deceased, near the edge of the hair and just in front of the ear, from which she died in about two hours after the shot was fired. So far as the record discloses, no other persons were in the rooms or apartments occupied by the defendant except herself and the deceased. The defendant, with her husband and the deceased, were living in an apartment house in rooms which were on the second floor and were on one side of the hall extending through the building. Dr. Elliott resided with his family on the opposite side; the doctor occupying a small room for an office in the front over the lower hall between the two apartments. He testified: "I heard loud talking. I could not distinguish the words at first that I heard in the west flat. I could not tell how long it continued because I did not pay very much attention to it until later. *** About 5 o'clock I passed *** into my private office, *** and while I was there I heard loud talking in the front room in the west flat which attracted my attention to the words I distinguished, 'Mama, don't strike me,' and immediately it sounded as though some one had just jerked away. After hearing these words I heard rapid steps passing from the front to the rear of the flat. It sounded like two persons. It was then a short space of time, just about as quick as they could pass from the front to the rear, I next heard two shots fired, and after the second shot I heard a drop like something had fallen. It sounded to me like it was in the rear part of the flat that I heard these shots, in the kitchen. At that time I was in my private room, and I went out *** into the corridor and got up to the head of the stairs, *** and Mrs. Harbour came out of her kitchen there...