State v. McKean
| Decision Date | 28 November 1922 |
| Docket Number | No. 5008.,5008. |
| Citation | 190 N.W. 781,46 S.D. 85 |
| Parties | STATE v. McKEAN. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Tripp County; N. D. Burch, Judge.
Ernest McKean was convicted of grand larceny, and he appeals from judgment and order denying new trial. Judgment and order reversed.
P. A. Hosford, of Winner, for appellant.
Byron S. Payne, Atty. Gen., and Benj. D. Mintener, Asst. Atty. Gen., for the State.
Appellant was found guilty of grand larceny, and he has appealed from the judgment and from an order denying a new trial.
[1] Respondent calls the attention of the court to the fact that appellant's brief is typewritten, and that there is nothing appearing in the record herein to show that appellant was entitled to file a typewritten brief under the provisions of sections 4791, 4792, R. C. 1919. Our attention should have been called to this matter by a motion to strike the brief from the files; and we would suggest to the Attorney General the propriety of making such a motion whenever a record does not show that such a brief could be properly presented. We do not deem that we would be justified in affirming this judgment without considering the merits of the appeal, or in now striking the brief from our files and granting time and opportunity for the service and filing of another brief, and delaying the disposition of this appeal. We will therefore consider the appeal upon its merits.
[2][3] There are numerous assignments of error. None present questions meriting any consideration except the one presenting for review appellant's motion for new trial based upon newly discovered evidence. Appellant was convicted of the larceny of a suit case and its contents. Practically the only evidence against appellant was: First, the fact that the suit case and contents were found in his possession the day of the alleged theft, the theft being early in the morning, and the property being found in his possession the following afternoon; and, second, the fact that when it was found in his possession by the sheriff, who asked him whose suit case it was, he said it was his, and he did not, in any way at that time, explain how he came in possession of same. Upon the trial appellant and two brothers swore that upon the night when this theft was alleged to have occurred they attended a dance at the village of Witten; that at about 1:30 o'clock in the morning they went over to a barber shop and visited there a while; that they then went in front of the barber shop, took an auto truck to go out to their father's home a short distance in the country; that, after one of his brothers got into the truck, and while appellant and the other brother stood by the side of the truck, a stranger approached, and, speaking to appellant, stated that he understood that appellant was going to Winner that day by truck or car, and wanted to know whether appellant would take a suit case, which he then carried, to Winner for him, as he himself was going to Winner on horseback that day; that he told this party he would take it for him; and that he then and there took the suit case. In support of his motion for new trial, appellant presents the affidavits of three persons, De Hardt, Hardacre, and Janek by name, all of whom swear that they saw some party approach appellant and his brothers on the morning in question in front of the barber shop; that said party was carrying a suit case; and that, after handing the suit case...
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Ashe v. United States
...would have more probative or convincing power than those who had testified. Sluman v. Dolan, 24 S.D. 32, 123 N.W. 72; State v. McKean, 46 S.D. 85, 190 N.W. 781; Taulbee v. State, 133 Tex.Cr.R. 530, 113 S.W.2d 182; State v. Wiley, 106 S.C. 437, 91 S.E. 382; Abramson v. State, 120 Tex.Cr.R. 1......
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United States v. Rutkin
...of the quality of that adduced at the trial, namely, that of other persons jointly indicted with the defendant. See also State v. McKean, 1922, 46 S.D. 85, 190 N.W. 781; Wisniewski v. Wysocki, Sup., 1942, 36 N.Y.S.2d 712; State v. Wiley, 1917, 106 S.C. 437, 91 S.E. 382 and Spencer v. State,......
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State v. Wood, 8526
...defendant must show that he has used due diligence to procure the evidence at the former trial,” and to the same effect are: State v. McKean, 46 SD 85, 190 NW 781 and State v. Keliher, 46 SD 484, 194 NW The matter of the sale of this pig to appellant was gone into by the defendant in detail......
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State v. Wood
... ... ordinarily be denied; and, in order to obtain a new trial ... upon the ground of newly discovered evidence, defendant must ... show that he has used due diligence to procure the evidence ... at the former trial," and to the same effect are: State ... v. McKean, 46 S.D. 85, 190 N.W. 781 and State v. Keliher, 46 ... S.D. 484, 194 N.W. 657 ... The matter of ... the sale of this pig to appellant was gone into by the ... defendant in detail at the trial. He testified to the ... transaction in which the ownership of the pig was said to ... ...