State v. Johnson, 10153

• Decision Date: 31 December 1965
• Docket Number: No. 10153,10153
• Citation: 139 N.W.2d 232,81 S.D. 600
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Darrell D. JOHNSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 232

139 N.W.2d 232

81 S.D. 600

STATE of South Dakota, Plaintiff and Respondent, v. Darrell D. JOHNSON, Defendant and Appellant.

No. 10153.

Supreme Court of South Dakota.

Dec. 31, 1965.

Roubideaux, Poches & Reade, Fort Pierre, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Walter Weygint, Asst. Atty. Gen., Pierre, Robert L. Varilek, Deputy State's Atty., Pennington County, South Dakota, Rapid City, for plaintiff and respondent.

RENTTO, Judge.

The lifeless body of William Sykes, an Australian who was visiting in the area, was discovered on a graveled road just north of the Interstate Highway near where it junctures with the West Boulevard Interchange serving Rapid City, South Dakota, about 6:30 a. m. on May 21, 1963. An information was filed naming the defendant, then residing at Sturgis, South Dakota, as being responsible for this death. Count I charged him with premeditated murder by strangulation, and Count II with unpremeditated murder in the commission of a robbery. He pled not guilty and not guilty by reason of insanity. The jury found him guilty of manslaughter in the first degree. He was sentenced to imprisonment for life. From that judgment he appeals.

Randy McIntosh, defendant's 15-year-old companion on the occasion involved, testified for the prosecution. He related how he and the defendant, in defendant's car, drove to Rapid City from Sturgis that night and met the decedent in the bus depot. He told of their driving with him from the depot to East Boulevard Park at which place defendant engaged in a fatal scuffle with the decedent in the car. After that they drove to the westbound section of the Interstate Highway where the car ran out of gas. When this happened they took the body from the car and put it in the place where it was found by others, several hours later. Then they drove the car some distance further west on the highway by utilizing its battery power until it stopped.

Defendant's testimony was that he blacked out about the time they were leaving Sturgis that night and knew nothing as to what took place until his companion aroused him on discovering that they were out of gas. Consistent with this he admitted on cross-examination that he didn't know whether he committed the homicide or not and claimed only that he didn't see how he possibly could have. He does not question the sufficiency of the evidence to sustain the verdict, but does urge several trial rulings as error requiring a reversal of the judgment.

On cross-examination the defendant, over objections, was interrogated concerning two prior occasions when he had had trouble with law. His objections were overruled and a motion for mistrial based thereon was denied. His claim is that these questions were not proper and their effect prejudicial. The following is the record leading up to the first of these:

'Q. Now, if I understand your testimony on direct examination, basically, it's this: You don't know whether or not you committed this crime, but you don't think you are the type of person that could commit it; is that correct? A That's right.

'Q And that's because you are a peaceful, law-abiding citizen; is that correct? A That's right.

'Q. And you have never been in any trouble with the law before this; have you?

'BY MR. ROUBIDEAUX: We will object to counsel's question, Your Honor. Whether or not he may have or may not have been in trouble with the law is immaterial.

'BY THE COURT: Overruled.

'A Yes, I have.

'Q. Yah. A couple of times, at least? A Yes.

'Q One time, in fact, it was for petit larceny; wasn't it, sir?--stealing something? A No, it wasn't.

'Q It was not for petit larceny? A It wasn't for stealing.

'Q Oh. You pled guilty to petit larceny, though; didn't you? A yes.'

In City of Sioux Falls v. Johnson, 78 S.D. 272, 100 N.W.2d 750, we said: 'In its discretion, a trial court may allow considerable latitude in the cross-examination of the accused. * * * Cross-examination may be as broad and as searching as the foundation of direct examination or of voluntary statement upon which it rests.' In permitting this question to be asked the trial court in our view did not abuse its discretion. The matter inquired about tends to contradict the defendant's claim that he was a law-abiding citizen. The purpose of cross-examination is to test the truth of the direct examination. State v. Egan, 44 S.D. 273, 183 N.W. 652.

The second question complained of is presented in this portion of the record:

'Q Now, these blackout spells of yours--As a matter of fact, don't you have one every time you do something that you are ashamed of, or that you are trying to hide? A No.

'Q Was there a time in about March of 1956, when you were in Deadwood, South Dakota? A I don't remember if I was there in '56 or--in March of '56, or not.

'Q Well, if I told you that you were in jail at the time, would you recall it then?

'BY MR. ROUBIDEAUX: Your Honor, we're going to object to this type of cross-examination. Any reference to whether this witness was or was not in jail is irrelevant and immaterial and prejudicial.

'BY THE COURT: Overruled.

'A Yes, I believe it was in--was in March.'

In view of the defensive claim made by the defendant we do not feel that the trial court abused its discretion in permitting this interrogation. But even if we were to hold it improper we would be unable to say that it was prejudicial when considered in the light of the whole record. Manifestly, these questions are not the needless and intentional injection of prejudice which we condemned in City of Sioux Falls v. Johnson, supra.

We think, it proper to point out that in both instances the objections were general in nature and neither one made the claim that the question propounded constituted improper cross-examination. State v. La Croix, 8 S.D. 369, 66 N.W. 944; State v. Egan, supra; State v. Williams, 47 S.D. 68, 196 N.W. 291. Consequently, it is doubtful that either objection was sufficient to require consideration by the trial court or presents the propriety of the court's ruling thereon for review.

The next error urged by defendant concerns Randy McIntosh's involvement in the death of Sykes. As the this feature we have only the testimony of Randy. It is that he and the defendant went to the bus depot and he saw Sykes, whom neither of them apparently had ever seen or heard of before, sitting there on a bench. Later the defendant and Sykes were in the restroom from which they came out together. They walked toward defendant's car and Randy followed them. Defendant then invited Sykes to go for a ride with them. Since the door on the passenger side was hard to open they all entered from the driver's side with defendant getting in first, Sykes next and then Randy.

Defendant started the car and told Randy to drive and directed him as to the route to follow, which took them to East Boulevard Park where they stopped the car with all of them remaining in it in the same positions. Defendant carried on a conversation with the deceased after which these two became engaged in a scuffle in which the defendant was the aggressor. During the scuffle Randy heard the defendant ask Sykes about his billfold. In the course of the scuffle Sykes' feet struck Randy and to protect himself from them Randy pushed them away, apparently several times. Soon Sykes' legs just slid down and went limp and he didn't move anymore or make any sounds.

The defendant then started the car and directed Randy to drive out of the park to the Interstate Highway where it stopped because they were out of gas. At that point defendant told Randy to get out of the car and open the door on his side and this Randy did after which the defendant got out of the car dragging Sykes' body. He asked Randy to help him so Randy took hold of an arm and a leg and they took the body to the right-of-way fence on the north side of the highway. There they put the head of the body on the top wire and gave the body a push causing it to slide down the other side.

They then went back to the car with the defendant taking the driver's side and Randy the passenger's seat. In the car they found a shoe, which Randy, at the defendant's direction, threw out. Then they drove the car west on the highway a short distance on the battery. After it stopped Randy went to get some gas, but when he returned with it the defendant was gone so he poured the gas into the tank of the car and hitchhiked a ride to Sturgis, arriving there at about 5 a. m. Defendant took the position that Randy was an accomplice as a matter of law and requested an instruction to that effect which was refused.

An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. To render one an accomplice he must in some manner knowingly and with criminal intent participate, associate or concur with another in the commission of a crime. State v. Shields, S.D., 132 N.W.2d 384. However, something more...