State v. Lapke
| Decision Date | 11 January 1934 |
| Docket Number | 7252 |
| Citation | 62 S.D. 187,252 N.W. 38 |
| Parties | STATE OF SOUTH DAKOTA Respondent, v. LAPKE, Appellant. |
| Court | South Dakota Supreme Court |
LAPKE, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Hand County, SD Hon. Frank R. Fisher, Judge #7252—Affirmed For former opinion, see 249 N.W. 634. C.M. Carroll, John Pusey, Harlan J. Bushfield, Miller, SD Attorneys for Appellant. Frank W. Mitchell, Ray F. Drewry Assistant Attorneys General, Pierre, SD Attorneys for the State. Opinion Filed Jan 11, 1934
This case is here on rehearing granted on motion of the state. The former opinion granting a new trial is reported in 249 N.W. 634. We are satisfied that the result there reached and announced is correct.
Our attention has been called to the statement of facts as contained in the former opinion and to particulars in which such statement is incomplete. We believe that a more complete statement would serve no useful purpose.
The conviction rests upon circumstantial evidence, given largely by witnesses who were brothers of defendant and were, prior to the trial, known to be unwilling and hostile to the state. Upon being called at the trial these witnesses gave testimony which was very unsatisfactory to the state, and in some particulars directly contradictory to testimony given at the preliminary hearing. The state was then allowed, over timely objection, to cross-examine these witnesses with reference to their former testimony, and to read into the record much testimony given at the preliminary hearing. This was done in each case not for the purpose of refreshing the memory of the witness, nor for the purpose of probing the conscience of such witness, but for the very apparent purpose of having such testimony so given at the preliminary hearing considered as substantive proof of the matters covered by such former testimony. The defendant requested the following instruction:
“Witnesses at this trial have been asked whether or not they have given certain testimony at preliminary investigation. The testimony so elicited from them at this trial as to what they have previously testified to was for the purpose of impeachment, or to touch the credibility of the witnesses and such testimony alone should not be considered affirmative proof of the issues in this action.
This instruction was refused, and the case submitted to the jury without any instruction as to the purpose for which the former testimony was received.
Certain exceptions to the well-established rule that a party may not cross-examine or impeach his own witness have been considered by this court in the following cases: State v. Callahan, 1100; State v. Laymon, 404; Nelson v. C., B. & Q. Railroad Co., 197 N.W. 288; State v. Raetz, 493.
In State v. Callahan, counsel for the prosecution appear to have assumed that a state’s witness would be adverse, and attempted to substitute his testimony at a former trial for present testimony by calling the attention of the witness to the testimony given by him at such former trial, and securing his admission that he had so testified. In disapproving of this method, the court said:
“After a witness has given damaging testimony, to the unavoidable surprise of the party calling him, it seems to be, in a proper case, within the discretion of the trial court to permit interrogation of such witness with respect to previous inconsistent statements, but this is to refresh his memory, and rarely, if ever, for the purpose of impeachment. Considered as independent testimony, what the witness had stated at a former trial was clearly incompetent, and if counsel believed that he had subsequently become...
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