State v. Hemmenway

• Court: South Dakota Supreme Court
• Writing for the Court: RENTTO
• Citation: State v. Hemmenway, 80 S.D. 153, 120 N.W.2d 561 (S.D. 1963)
• Decision Date: 28 March 1963
• Docket Number: No. 9983,9983
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Lewis HMMENWAY, Defendant and Appellant.

Page 561

120 N.W.2d 561

80 S.D. 153

STATE of South Dakota, Plaintiff and Respondent, v. Lewis HMMENWAY, Defendant and Appellant.

No. 9983.

Supreme Court of South Dakota.

March 28, 1963.

Robert W. Gunderson, Rapid City, for defendant and appellant.

A. C. Miller, Atty. Gen., Joseph Bottum, III, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

RENTTO, Judge.

This is a criminal case. The defendant was found guilty of the crime of rape involving a girl under the age of 18 and was sentenced to 15 years imprisonment. His appeal from the judgment is prosecuted by court-appointed counsel who, by appointment, had also represented him at his two trials.

According to the state's evidence, the complaining witness on October 17, 1960, was visiting in the home of a cousin in Rapid City, South Dakota. It was her first occasion to be in the city. Apparently she lived at Wanblee on the Pine Ridge Indian Reservation. About mid-afternoon of that day the defendant, who was unknown to the complainant or any of the persons in her cousin's home, came there and made inquiry about a named girl whom none of them knew. He told them he was looking for a baby-sitter. After some discussion complainant agreed to act in that capacity.

She and the defendant drove away in his automobile stopping at the edge of the city where he purchased two bottles of beer. He then drove out of the city some 30 miles east and north where he pulled off the road and stopped his car. At that place he forced her into the back seat of his automobile and had sexual intercourse with her. They returned to downtown Rapid City early that evening and when the defendant got out of his car for a moment, she ran to a phone booth and called the police. Her call was answered promptly after which she was taken to the hospital for medical examination and treatment.

On arraignment he entered pleas of not guilty and not guilty by reason of insanity. Early in the morning of October 12, 1961, which was the fourth day of his first trial, the jury reported that it was unable to agree and was discharged. On October 16th the state moved that a date be set for the retrial of the defendant at the pending term of court. He resisted the motion and asked that it be put over the term. His request was denied and the motion of the state granted. Before the retrial which began on November 6th the defendant withdrew his plea of not guilty by reason of insanity and stood on his plea of not guilty. On the retrial he was convicted.

He argues here that the court erred to his prejudice in ordering him to be retried at the same term of court. We do not share that view. The court's action was expressly authorized by SDC 1960 Supp. 34.3658, which provides:

'In all cases where a jury is discharged or prevented from giving a verdict, by reason of an accident or other cause except where the defendant is discharged during the progress of the trial or after the cause is submitted to them, the cause may be again tried at the same or another term, as the Court may direct.'

This statute clothes the court with judicial discretion in directing the date of retrial. As with other discretionary matters such decision of the trial court may be disturbed only for a clear abuse of that discretion.

Defendant's opposition to a retrial at the same term was based on statements of his counsel that publicity given to his first trial made a fair trial impossible if retried at the same term. These assertions did not include any facts relevant to possible prejudice. They were only conclusions as to a matter with which we may assume the trial judge was equally familiar, having presided over the first trial. On this record we are unable to review the court's action. In ruling on the motion the court stated that an entirely new panel of sixty jurors would be called for the second trial. This apparently was done. The record shows that it was necessary to examine only thirty prospective jurors to get the retrial jury and one alternate. In th process eleven were excused for cause and defendant exercised only one peremptory challenge, the state exercised four. These subsequent circumstances seem to dispute the defendant's version of the situation.

At the opening of the retrial before the selection of the jury was begun the state asked and was granted permission to indorse the names of several additional witnesses on the information. The explanation made in support of this request was that the names of these witnesses had just recently been learned by the state. Defendant's objection was only that the prosecution in the exercise of diligence should have discovered these witnesses much sooner. When presented in this posture this court has uniformly held claimed error of this bype to be unsubstantial. See cases collected in 5 West's Dak.Digest, Criminal Law, k628 and k1044. Without a claim and showing of prejudice there is nothing for review. If the defendant was surprised by the indorsement of the names of these new witnesses on the information, he should have moved for a continuance or postponement of the trial to prepare to meet their evidence.

At the first trial a Della Whiteley testified for the defendant. She was subpoenaed from the state of Michigan to appear as a witness pursuant to SDC 1960 Supp. 34.25--the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. Pennington County was ordered to pay her the mileage and daily fee prescribed in the Act. On October 23, 1961, after the first trial, defendant secured ex parte, a court order requiring the reporter to furnish him a transcript of the testimony given by Della Whiteley at the previous trial for use as evidence at the second trial. This also was at the expense of the county.

His motion to furnish the transcript alleged that the witness was then in Michigan and the cost of bringing her back to testify at the second trial was prohibitive and that he was destitute. Nevertheless, at the opening of the second trial defendant requested that this witness be again subpoenaed on behalf of the defendant and the charges paid by the county. This was denied but permission was given to read her former testimony. The denial of this motion is assigned as error.

It clearly appears...