State v. Hermandson, 10497

• Decision Date: 03 July 1969
• Docket Number: No. 10497,10497
• Citation: 169 N.W.2d 255,84 S.D. 208
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Gust HERMANDSON and Maynard Rinkley, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 255

169 N.W.2d 255

84 S.D. 208

STATE of South Dakota, Plaintiff and Respondent, v. Gust HERMANDSON and Maynard Rinkley, Defendants and Appellants.

No. 10497.

Supreme Court of South Dakota.

July 3, 1969.

Roy A. Nord, Madison, Mumford, Protsch & Sage, Howard, for defendants and appellants.

Frank L. Farrar, Atty. Gen. and Thomas R. Vickerman, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

BIEGELMEIER, Presiding Judge.

The complaint (SDC 1960 Supp. 34.1501) charges that defendants did on November 6, 1966:

'unlawfully throw and cast the rays of a vehicle headlight upon the highway in an area wherein big game may reasonably be expected to be while having in their possession and under their control a firearm, to-wit: a Ruger .22 caliber semi automatic rifle whereby any big game could be killed which weapon was fully assembled and loaded in violation of Section 25.0702 SDC 1939 as amended.'

The section was amended to include this offense by Chapter 96, Laws of 1943.

The facts are that about 9:00 p.m. on November 6, 1966, State Game Warden Peterson received a call that a deer had been hit on Highway 81 near Arlington. When he arrived and while he was dressing it out he heard gunshots. He called Warden Hoekman by radio and when he arrived they both heard shots coming from the north and saw a vehicle approaching from that direction and so they headed north in one of the warden's cars. They soon met a pickup truck which stopped and as appellants' brief states it:

'Peterson proceeded toward the back of the truck and looked into the box. This testimony was objected to and the objection denied. * * * Peterson said he saw a knife and blood in the pickup. He took the knife * * * and put it in Mr. Hoekman's car. * * * Hoekman reached in the cab of the truck and grabbed the rifle which was between the driver, Hermandson, and Appellant Rinkley.'

Defendants served and relied on four assignments of error. The first one states the court erred in allowing testimony as to the stopping of defendant Hermandson's vehicle and the search thereof and that the stopping was in violation of defendant's constitutional rights. SDC 1960 Supp. 33.0735 relates to the content and service of assignments of error; it requires that each assignment shall state only one claim of error, separately stated and numbered and 'shall refer to the page of the transcript * * * where the alleged error appears.' This assignment designating pages 36 and 37 of the transcript does not set out nor can it set out any question, objection or ruling as no objection was made to any question. An examination of pages 36 and 37 discloses the evidence there relates to the warden's driving north to meet a vehicle coming south; they turned on their red lights and it stopped in front of them and defendant Hermandson stepped out of the pickup and they had a conversation. The testimony of the prior witness Peterson is to the same effect and all the testimony relating to the stopping of the pickup went in without objection. Peterson further testified he and Hoekman got out of his car and approached the pickup; that Hoekman stopped at the cab and Peterson proceeded around the side of the pickup and the following occurred:

A. 'I walked around towards the side and rear of the pickup and looked into the box.'

'That is objected to for the reason that there is no proper foundation for it and his testimony has already been suppressed.'

The Court: 'Overruled. This is testimony. There was no motion to suppress the testimony, but now that you have raised that, that motion has been denied and you will probably want a continuing objection, but for the time being I will rule on the one objection which is overruled.'

This record shows defendants did not object to testimony of this witness or the right of the wardens to stop the pickup but only of what the warden may have seen after he walked to the rear of it. Defendant may not for the first time raise that question in the appellate court. Application of Heintz on Behalf of Trembly, 78 S.D. 188, 99 N.W.2d 794 and State v. Pirkey, 22 S.D. 550, 118 N.W. 1042, 18 Ann.Cas. 192 (rev. on other grounds in 24 S.D. 533, 124 N.W. 713), evidence admitted without objection is not subject to a motion to strike it.

The trial court was correct in overruling the objection as to foundation for the witness Peterson was testifying what he did and saw in the presence of defendants and there was no lack of foundation. The objection that the court had suppressed the 'testimony' did not correctly state the court's ruling. Counsel is bound by the grounds stated in his objection if it is overruled. Ross v. Foss, 77 S.D. 358, 92 N.W.2d 147; Fryda v. Vesely, 80 S.D. 356, 123 N.W.2d 345; Accord: State v. Dietz, N.D., 115 N.W.2d 1, citing 88 C.J.S. Trial § 125(b).

The evidence of stopping defendant's auto being without objection the officers could properly testify what they saw from where they stood on the public highway as this did not amount to a search within the constitutional provisions cited. In State v. Huffman, 1967, 181 Neb. 356, 148 N.W.2d 321, cert. den. 386 U.S. 1024, 87 S.Ct. 1384, 18 L.Ed.2d 466, after stopping a car and during an 'informal detention' the officer flashed his light through the car window and observed a stolen rifle and in Dickerson v. State, 1967, 43 Ala.App. 694, 200 So.2d 487, the court held there was no 'search' of an automobile where a gun was visible to an officer when he looked into the automobile. The court quoted from Carver v. Ross, E.D.N.C., 257 F.Supp. 894, that 'It is not a search to see what is patent and obvious.' See also People v. McDonald, 1968, 13 Mich.App. 226, 163 N.W.2d 796; State v. Howard, 1969, Neb., 167 N.W.2d 80 and State v. Smith, 1969, Neb., 167 N.W.2d 568. Cf. State v. Valstad, 1969, Minn., 165 N.W.2d 19.

Viewed, however, under the guidelines for searches and seizures in State v. McCreary, 1966, 82 S.D. 111, 142 N.W.2d 240, the testimony was admissible as there was probable cause for the actions of the officers. The McCreary opinion states a search of an automobile must meet the test of reasonableness under both Article 4 of the amendments to the U.S. Constitution and Article VI, § 11 of the S.D. Constitution and cites Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 and State v. Merrell, 52 S.D. 129, 216 N.W. 874. The court pointed out the difference between search of a house or rooms and search of an automobile and quoted from the Preston opinion that:

'Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable...