State v. Mitchell
| Decision Date | 07 March 1923 |
| Docket Number | No. 4992.,4992. |
| Citation | 46 S.D. 272,192 N.W. 487 |
| Parties | STATE v. MITCHELL. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; Frank Anderson, Judge.
George D. Mitchell was convicted of grand larceny, and he appeals. Affirmed.Gardner & Jones, of Britton, for appellant.
M. J. Staven, Sp. Prosecutor, of Britton, Howard Babcock, Sp. Prosecutor, of Sisseton, and Byron S. Payne and Benj. D. Mintener, both of Pierre, for the State.
[1] Appellant was convicted of grand larceny, and assigns four separate grounds for a new trial. His first ground is the denial of his challenge for cause to one of the venireman. This venireman on his voir dire testified that he had read newspaper accounts of the charge against appellant, and that he had talked with parties who purported to narrate the facts relative to the larceny, but that he had not talked with any of the witnesses or any one who knew the facts other than from hearsay or rumor. He testified that from the information he had gained from the above sources he had formed an opinion as to the guilt or innocence of appellant, and that he still entertained such opinion, and that it would take some evidence to remove it. He also testified that if sworn as a juror he would try the case and decide it “entirely and exclusively on the evidence” produced in court. He further testified that he entertained no doubt of his ability to set aside such opinion as he had formed and try the case wholly upon the evidence. Section 4859, Code 1919, reads as follows:
[2][3] This section should be liberally construed in favor of the defendant in a criminal case, and if the trial court has any doubt as to the venireman's ability to fairly and impartially try the case, such doubt should be resolved in favor of the defendant; and in this case, as in State v. Church, 6 S. D. 89, 60 N. W. 143, we think it would have been better to have allowed the challenge. But the trial court is vested with a very broad discretion in regard to a venireman's qualification to act as a juror, and the extent to which he may be examined touching such qualification; and, unless it be clearly shown that such discretion has been abused, or that defendant has been prejudiced by the denial of the challenge, this court will not interfere. The trial court is able to judge to a large extent from the general appearance and conduct of a venireman whether he is competent to act as a juror, and where it appears, as it evidently did in this case, that a juror who was really qualified to try the case was trying to escape jury service without actually committing perjury, it is proper for the court to deny the challenge. On the other hand, the court should exercise extreme caution not to jeopardize a verdict where any doubt exists as to a venireman's qualification to act as a juror.
[4] Under this head, appellant also contends that the court unreasonably limited his examination of said venireman. We find nothing whatever in the record upon which to base this contention. Counsel for appellant examined the venireman and challenged him for cause. The challenge was denied. Counsel then re-examined him and renewed his challenge. The challenge was again denied. No further effort to examine him appears to have been made, nor was any request made for leave to further examine him. This presents nothing for the court's consideration.
[5] By an oversight on the part of the court the written instructions were not taken by the jury to the jury room when they retired to consider the case. This fact was discovered before the return of the verdict. Upon such discovery, the jury was immediately called into the courtroom. The written instructions were delivered to them, with the direction by the court that they, the jury, should retire to the jury room and read such instructions before arriving at their verdict. This direction...
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