State v. Kaufmann

• Decision Date: 18 November 1908
• Citation: State v. Kaufmann, 22 S.D. 433, 118 N.W. 337 (S.D. 1908)
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. EMMA KAUFMANN, Defendant and appellant.
• Court: South Dakota Supreme Court

22 S.D. 433

118 N.W. 337

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

EMMA KAUFMANN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Moody County, SD Hon. E. C. Smith, Judge Aikens & Judge, Rice & Benson, Jordan & Warren Attorneys for appellant, S. W. Clark, Attorney General Alpha F. Orr, State’s Atty. Thos. H. Null Attorneys for the State. Opinion filed Nov. 18, 1908

HANEY, P. J.

This appeal is from an order denying defendant’s application for a new trial. Accused of murder she was found guilty of manslaughter in the first degree, the charge being that she caused the death of Agnes Polreis by inflicting three mortal wounds upon the head and two mortal wounds upon the shoulders with a dangerous and deadly instrument to the informant unknown. The evidence disclosed that the deceased, then aged about 16 years, entered defendant’s home as a servant in February, 1906, and that she was removed therefrom to a hospital on the morning of June 1, 1906, where she died a few hours later. There was testimony, if believed, which strongly tended to prove ill treatment of the deceased or inexcusable neglect by the defendant. There were circumstances attending the girl’s death naturally calculated to excite suspicion and create intense prejudice against the accused. It appears from the record that preceding and during the trial certain newspapers having more or less extended circulation in the county where the crime is alleged to have been committed, and the one in which the action was tried, gave unusual publicity to every fact, incident, and rumor connected with the unfortunate affair in such a manner as to greatly intensify the existing prejudice. Special counsel was employed to assist the state’s attorney, who assumed entire control of the prosecution; expensive medical experts from other states were employed to support the theory of the government; large and demonstrative crowds daily attended the trial; and, as is usual in so-called “celebrated cases,” every one connected with the proceedings appears to have become more or less fatally imbued with the notion that he was the principal participant in the most important event in the history of criminal jurisprudence. It requires no argument to demonstrate that such conditions are not peculiarly conducive to the exercise of that impartial and discriminating judgment which should characterize the deliberations and decisions of courts and juries, especially when the life and liberty of a presumptively innocent person are involved. As heretofore suggested, there was evidence which, if believed, would necessarily subject defendant’s conduct towards the deceased to the most severe condemnation, and which was, if believed, sufficient to convict her of culpable negligence; but that charge was not embraced by the pleadings. As stated by the learned circuit judge in his instructions to the jury:

“The state charges the defendant with the murder of Agnes Polreis, by acts of violence and by means of blows and wounds, described and set out in the information, and the charge against the accused, therefor, is not unlawful homicide committed through criminal negligence in willfully failing or refusing or neglecting to provide for the deceased proper medical aid or nursing, and this proposition is true, no matter what facts may be disclosed by the evidence in this case with relation to her conduct toward the deceased in that respect, if you shall believe that the evidence does disclose such facts. … The court further instructs you as the law of this case, that if you believe the defendant did strike and wound the deceased, Agnes Polreis, giving her the wounds. charged in the information, and if you further believe that at the time of said striking the deceased was, and for a time prior thereto had been, suffering from disease or injuries, and was even then mortally ill, yet if the jury believe the death of the deceased was hastened by the blows struck by the defendant and charged in the information, the act that the deceased was suffering at the time from blows or injuries, other than those set out in the information, and that such disease or injury would probably have been fatal, such fact would not extenuate defendant’s guilt; if the deceased yet retained any spark of vitality, and the act of the defendant, by means of the specific wounds charged in the information, cut short the existence of the deceased, the defendant would be responsible for such death to the same extent as if the deceased had been at the time in full health and vigor. But while this is clearly the law, the jury should exercise its keenest intelligence in applying this rule of law to the particular facts in this case, and in this connection the jury are further instructed upon the ultimate question what was the cause of the death of the deceased, in order to convict the defendant under this information, you must be able to trace the death, beyond a reasonable doubt, to the specific injuries alleged in the information and proved beyond a reasonable doubt to have been inflicted by the defendant.”

The nature of the wounds afforded slight, if any, foundation for a satisfactory opinion as to what caused them; all the evidence, if any, tending to connect the defendant with the alleged crime was circumstantial; but there was uncontradicted testimony to the effect that a poor servant girl had received unkind treatment during the days directly preceding her death. It was, indeed, a case requiring the exercise of the keenest intelligence on the part of the jury, judge and counsel; a case where prejudice against the defendant’s conduct, if not against herself, was unavoidable; where, independently of rules of procedure, it appeared that the accused merited condemnation and punishment. It was a case requiring exceptional care to exclude from the consideration of the jury everything calculated to influence its decision which was not relevant to the issues presented by the information and plea of not guilty; a case wherein an understanding of the real issues, the popular prejudice, and the situation of the accused is essential to a proper consideration of her assignments of error on this appeal.

The first ground of defendant’s motion for a new trial is in effect that she was prevented from having a fair and impartial trial by reason of the misconduct of counsel for the state. In support of this ground numerous instances of alleged misconduct on the part of the special prosecutor are specified in the assignments of error. If there were any irregularities in this respect which were prejudicial to the substantial rights of the defendant, they are reviewable on this appeal. Rev. Code Cr. Proc. § 430, subd. 4; State v. Place,(1906). The decisions wherein misconduct of counsel has been considered are numerous. It is believed that all rest upon substantially the same fundamental principles, though different language may be employed in the application of such principles to the peculiar facts of each particular case. In all these cases the ultimate and controlling questions are whether the verdict is or must be presumed to be a fair expression of the opinion of the jurors upon the issues submitted by the court, and whether such opinion was based alone upon the evidence received on the trial. Concerning the conduct of counsel in civil cases this court has said:

“Within the limits of the testimony, the right of argument, criticism, and comment is free; but when counsel makes assertions calculated to prejudice the minds of the jury, not warranted by the testimony before them, he goes beyond the freedom of discussion the law and the courts allow him. The only matters proper to be considered by the jury are the issues raised by the pleadings and the evidence admitted by the court. … Counsel, as officers of the court, should never, in their zeal for their clients, so far forget the duty they owe to the court as to improperly attempt to prejudice or influence the jury in the discharge of their duties, by bringing before them in argument matters not in evidence in the case; and it is the duty of trial courts to see that no such improper statements are permitted to be made to the jury.”

Lindsay v. Pettigrew,(1892). Concerning the same subject in a criminal action the New York Court of Appeals thus forcefully declares the rule which should prevail. in the trial of all criminal actions:

“Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi judicial officer, representing the people of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy, or resentment.”

People v. Fielding, 158 NY 542, 46 LRA 641. Presumptively the best thought of the profession, in this country, on the subject of the lawyer’s duties, has found expression in the canons of ethics proposed by the American Bar Association, from which we quote the following excerpts:

“A lawyer should not offer evidence which he knows the court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, suitably addressed to the court, remarks or statements intended to influence the jury or bystanders, These and all kindred practices, appropriately termed ‘pettifoggery,’ are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the...