State v. Kapelino
| Decision Date | 11 July 1906 |
| Citation | 108 N.W. 335,20 S.D. 591 |
| Parties | STATE v. KAPELINO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lawrence County.
John Kapelino was convicted of assault, and appeals. Affirmed.
Joseph B. Moore, for appellant.
Philo Hall, Atty. Gen., Wm. H. Parker, State's Atty., and Robert P. Stewart, for the State.
Upon an information duly filed, charging the plaintiff in error with an assault with intent to commit murder, by the use of a deadly weapon, he was convicted of the crime of an assault with a sharp and dangerous weapon with intent to do bodily harm. It is disclosed by the evidence that the plaintiff in error, who will hereafter be denominated the defendant inflicted two wounds upon the person named in the information by means of a knife, about 8 inches in length and 1 1/2 inches in breath, one of which on the body near the sixth rib and the other just below the left groin. It is also disclosed by the record that the defendant and injured party with a number of other young men had spent the evening, until about 11 o'clock, at the house of one Zurich; that the party broke up and on their way home engaged in snowballing, in which the defendant seems to have taken a part; that the defendant, who lived near by, left the party and was gone two or three minutes, when he returned armed with a large knife and almost immediately thereafter he stabbed the injured party with said knife, giving him the wounds above described. It is also disclosed by the record that the defendant, while at the house of Zurich with the others, drank quite freely and was somewhat intoxicated. It was the theory of the prosecution that, at the time he left the party, he went to his house and procured the knife used in stabbing Bocich, and the evidence of the witnesses seems to have warranted the correctness of this theory, as the knife was not of such a character as is usually carried by persons on ordinary occasions. The principal errors assigned by the defendant for a reversal of the judgment are: (1) That the court erred in refusing to require the state's attorney to call as witnesses, on the part of the state, all of the persons who were present at the time the injuries were inflicted and who were present in court, that they might be cross-examined by the defendant; (2) that the court erred in refusing to permit the defendant to prove what occurred at the house of Zurich while the parties were there present, as a part of the res gestae; (3) that the court erred in refusing to give an instruction requested by the defendant as to the effect of intoxication as a defense to the charge; and (4) that the court erred in refusing to instruct the jury that the defendant, under the charge in the information, might be convicted of simple assault and battery.
1. On the trial of the case the state's attorney called a number of witnesses, who testified fully as to what occurred at the time, immediately preceding, and immediately subsequent to, the infliction of the injuries by the defendant upon the person of Bocich, and rested. The defendant then moved that the court require the state's attorney to call other witnesses who were present in court, to enable the defendant to cross-examine them. This request was denied by the court, and this refusal is assigned as error. It is contended by the defendant that it was the duty of the state's attorney to call these persons as witnesses, but in our opinion the court was right in refusing this request. It appears from the evidence that there was a large number of persons constituting the party at Zurich's house, who came away together, all of whom participated in the snowballing which seemed to be as to all parties of a friendly nature, except the defendant, who appears to have become angry for some reason, and to have left the party for a few minutes, and on returning used the knife as above stated. The law of this state does not require the production of all the eyewitnesses to the transaction on the party of the state, and, in the absence of such a requirement, we are not inclined to adopt such a rule of practice. The rule contended for by the defendant was established in England at an early date, when defendants in criminal cases were not allowed the aid of counsel in making their defense, and is not applicable in this state, where defendants are not only permitted to have aid of counsel, but, when unable to employ counsel, the same is furnished by the county, and are also entitled to compulsory process of the court to compel the attendance of their witnesses. The rule contended for by the defendant does not seem to have been generally adopted in this country, unless there were special circumstances requiring the enforcement of such a rule, except in the state of Michigan. The rule as established by the learned court of that state does not meet with our approval. We are inclined to adopt the rule, which seems to us the more reasonable one, of leaving the state to make out its case by such witnesses as it may choose to examine, and leaving the defendant to rebut the same by such witnesses as he may choose to call. This seems to be the view of the Supreme Court of North Dakota in the analogous case of State v. McGahey, 3 N. D. 293, 55 N.W. 753, in which that learned court reviewed the authorities and concluded, as stated in the headnote, as follows: "No duty rests upon the prosecution in a criminal case to produce and swear as witnesses for the state all the eyewitnesses to the transaction, where the testimony of the witnesses called, or some of them, is direct and positive, and apparently covers the entire transaction." Such was the case at bar. Several witnesses called by the state were present and eyewitnesses of the transaction and detailed very fully all that occurred immediately prior to, at the time, and immediately subsequent to, the infliction of the injury complained of. The court committed no error, therefore, in refusing to require the state's attorney to call other witnesses then present in court.
2. The defendant sought, on cross-examination of the witnesses on the part of the state, to show that there was a heated discussion between the parties present at Zurich's during the time they were there, in regard to the Greek and Catholic religions, and that some angry words passed between some of the parties and Kapelino; but, so far as the questions in the case indicate, there were no words between the injured party and Kapelino. The nature of the questions may be understood from the following questions propounded to witnesses for the state: "You were discussing the question of the Greek Catholic and the Roman Catholic religion, weren't you?" "Didn't you people get into a quarrel there over the Greek Catholic Slavonians and the Roman Catholic Slavonians; and didn't Chris Miljas pound his glass down on the table *** and say to John Kapelino, 'If you have got anything against Big Mike you got it against me, let's settle right here,' or words to that effect?" Neither Big Mike nor the party speaking to Kapelino was the party subsequently assaulted and cut. It will be further noticed that the assault committed on the injured party by the defendant occurred some time subsequently to the breaking up of the party at Zurich's, and that the defendant had left the party on the way home and...
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