State v. Meservey, 6537

• Citation: 53 S.D. 60,220 N.W. 139
• Decision Date: 23 June 1928
• Docket Number: 6537
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE O. MESERVEY, Defendant and appellant.
• Court: Supreme Court of South Dakota

53 S.D. 60

220 N.W. 139

STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE O. MESERVEY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Hyde County, SD

Hon. James Mcnenny, Judge

File No. 6537—Affirmed

Johnson & Simons, Sioux Falls, SD

Attorney for Appellant.

Buell F. Jones, Attorney General

Bernard Brown, Assistant Attorney General, Pierre, SD

Attorneys for the State.

Opinion filed June 23, 1928

BURCH, P. J.

On the 30th day of April, 1926, defendant shot and instantly killed Hugh L. McNamara, sheriff of Hyde county. He was afterward tried and convicted of murder and on the 16th of June, 1926, was sentenced to life imprisonment in the state penitentiary. From the judgment and an order denying a new trial, he appeals.

The shooting occurred in Hyde county on a farm that had been the home of appellant and his family for many years. Difficulties arising from the foreclosure of a mortgage and subsequent litigation over the farm culminated in the homicide. Appellant had lost the farm through the foreclosure and it had been purchased by Quirk and by him leased to Peet Appellant refusing to surrender possession had been removed by the sheriff under an execution in forcible entry and detainer. After service of the execution an appeal was taken and supersedeas bond furnished pending appeal, but exceptions were taken to the sureties on the bond, and, without attempting to justify the sureties, appellant returned with his wife and son to the farm, and, on the day of the homicide, was holding possession against Quirk, the purchaser, and Peet, his tenant. Quirk, and Peet with his family, came to the place on that day several hours before the sheriff, but there does not appear to have been any trouble until the sheriff came to the premises about 5:30 or 6 o’clock in the evening, with his brother and a deputy. According to the evidence of the state, the sheriff had a warrant for the arrest of appellant. The sheriff drove up in his car to within a few feet of the steps leading onto the porch and he and his deputy got out and advanced toward the porch. Appellant and his son were on or near the porch and appellant’s son was armed with a revolver in a holster strapped to his person, while near appellant there was a loaded shotgun and rifle. A conversation was had between the sheriff and appellant, lasting F or a time variously estimated at from 10 minutes to half an hour, in which appellant was advised of the sheriff’s mission and urged to submit peaceably. This he refused to do, and, when pressed, warned the sheriff to come no closer and turned and seized the loaded shotgun a few feet away. The sheriff jumped or ran from the porch and, as he got to the bottom of the steps, appellant fired, killing him almost instantly, Louis McNamara, the brother, then drew his gun and fired twice at appellant from the car. There were several eyewitnesses and they all agree as to the essential details. Appellant claims he shot in self-defense and that he did not shoot until after the sheriff had drawn his gun and was crouching by the porch apparently intending to shoot. Appellant was well acquainted with the sheriff, knew his mission, and, when he fired the fatal shot, was actively engaged in resisting arrest. There is evidence that earlier in the day appellant told Howard Melbourne that the Hyde county officials had ridden him long enough and that now he was going to ride and “with bloody spurs.”

He seeks a reversal on the following grounds: First, that the court erred in denying him a change of venue; second, because of errors in the receipt and rejection of evidence and the misconduct of the state’s attorney in offering certain exhibits and evidence on the trial; third, because of the insufficiency of the evidence to support the judgment.

Appellant moved for a change of venue on the ground that a fair and impartial trial could not be had in Hyde county by reason of the prejudice of the citizens of said county against him, This motion was made after a change of judges had been obtained upon an affidavit of prejudice. The motion for change of venue was supported by a number of affidavits. One was by appellant’s attorney to the effect that, when the affidavit of prejudice for change of judges was filed, the said judge “proceeded to lecture” affiant in the presence of most of the jury panel because he had not immediately come into court and presented the affidavit of prejudice; that in the course of his remarks the judge referred to the expense to Hyde county in keeping the jury waiting, the importance of the case, the seriousness of the crime charged, and the improper actions of affiant, whereby the jury were greatly prejudiced against appellant and could not thereafter give appellant a fair trial. The affidavit also identified and presented certain newspaper articles published in the Hyde County Bulletin and the Highmore Herald, newspapers of general circulation in the county, wherein the details of the crime were portrayed, opinions of the editors expressed, and the virtues of deceased extolled. Another affidavit alleged that deceased was elected sheriff of Hyde county by a large popular vote; that he was well known throughout the county, and his death caused a great amount of discussion which caused the people throughout the county to become excited and inflamed against appellant, and threats of mobbing were so numerous that the authorities moved appellant first to Pierre and then to Huron for protection against violence; also that deceased had many relatives in the county who have created a sentiment against appellant, and, for that reason, it would not be possible for appellant to have a fair trial in the county. Sixteen others signed identical affidavits.

Philip Meservey, a son of appellant, who was also...