State v. Peifer
| Decision Date | 05 March 1926 |
| Docket Number | 5574. |
| Parties | STATE v. PEIFER. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Butte County; James McNenny, Judge.
Max Peifer was convicted on an information charging him with larceny of a steer, and he appeals from the judgment and order denying new trial. Reversed.
Harry P. Atwater, of Sturgis, for appellant.
Buell F. Jones, Atty. Gen., and Bernard A. Brown, Brief Atty., of Pierre, for the State.
Appellant was convicted upon an information charging him, together with William J. B. Guffy, Roy W. Howind, and H. D. Witherill, with the larceny of a certain steer described in the information as: "One red, white-faced steer of the goods and property of Henry Karrels."
Numerous errors predicated upon the admission and rejection of evidence, upon the refusal to give requested instructions and upon the insufficiency of the evidence to support the verdict are assigned as grounds for a new trial. An understanding of the case sufficient to pass upon either of the questions raised by the assignments requires an extended statement of the facts.
The evidence shows that appellant was the owner of a government homestead in the southeasterly corner of Butte county. On this homestead he had a dwelling house, a barn, a blacksmith shop, a stock corral adjacent to the barn, and a fence inclosing part or all of said homestead which consisted of a section of land. The surrounding country is rough and broken and sparsely settled. It was not adapted to farming and the evidence does not show that any portion of appellant's homestead was or ever had been farmed or cultivated. Appellant did not live on this place himself and had not lived there for at least two years prior to his arrest. He did, however, have some cattle in his pasture or running on the adjacent range, and the defendant Witherill was, and for some two years past had been, living in appellant's house. Appellant himself made his home with his father and mother on their farm at some distance from his own place, and assisted his father, John Peifer, with the farm work. Appellant's place was on the north side of the Belle Fourche river and several miles from the river. The John Peifer place was on the south side of the river. It was the custom of appellant to go over to his own place occasionally usually on Sundays and at intervals of two or three weeks though possibly oftener at times. In going from the John Peifer place to appellant's place it was necessary to travel several miles along the road leading to the town of Vale, then turn north to a bridge crossing the river, then over broken country through numerous gates to appellant's place.
On the morning of September 26, 1923, the witnesses Fred Westgate and J. D. Heil, two deputy state sheriffs, met the defendant Guffy, about 20 miles from Sturgis, traveling toward Sturgis in a Ford car. He was about 15 miles from appellant's place. They stopped Guffy and in a box on the rear of the car found four quarters of freshly butchered beef. They arrested him and took him and his car and load back to Sturgis. Later in the day the above-named witnesses, together with John Emerson, sheriff of Meade county, and one Baldwin, both of whom were witnesses for the state, went to appellant's said place. They arrived there between 8 and 9 o'clock that evening. When they arrived they found appellant alone in the house. They searched the premises and found unmistakable signs that a beef had been butchered there very recently. They found three butcher knives with fresh blood on them and a meat saw smeared with blood and tallow. In a kettle on a stove in the kitchen was a partly cooked beef heart. It was not cooking at the time, but had been and the water in the kettle was still hot. There was also a pot of beans on the stove. In the corral by the barn they found a block and tackle that had apparently been used to hang a beet. Nearby was a bloody ax. There was fresh blood on the block and tackle and on the ground in the corral, and nearby lay the entrails of a recently butchered animal. These various tools and articles were all lying about in apparently natural positions. Certainly no attempt had been made to conceal any of them, or the purpose for which they had been used. When the witness Westgate went to the corral, he found inclosed a cow and a yearling steer. The steer was branded H A H, and this brand was owned by Frank Keffler. Who owned the cow is not shown. The witness Emerson placed appellant under arrest, and about 10 o'clock that night the witnesses prepared to leave appellant's place to go to another house in the neighborhood. They took appellant with them, but before they started appellant was permitted to go out to the barn to hang up his saddle. While he was there he opened the corral gate and permitted the cow and steer above mentioned to escape, and they went out through the gate on the run. The entire party then left the place, but returned about 4 o'clock the following morning. On their return one of the officers proceeded to make a fire in a cook stove in the kitchen. He testified that there were three stoves in the kitchen; one a cook stove set up, an oil stove set up, and a cook stove not set up. When the witness opened the stove to clean out the fire box, he found a piece of fresh beef hide rolled up tight and more or less scorched and burned. He testified that he saw some sparks of fire in the ashes, showing there had been a fire in the stove very recently. Further search was made after daylight and other pieces of beef hide were found about the barn and blacksmith shop. At least one of these pieces of hide was fresh. On one of them was a brand, but whose brand it was does not appear. It is claimed by the prosecution that there was a brand or part of a brand on the piece of hide that was found in the stove, but it is not set out in the record and whose brand it was is wholly a matter of conjecture. These officers testified that in or near the corral a short distance from the barn they found the remains of 10 paunches. This evidence was admitted on the theory that appellant had been engaged in the wholesale slaughter of beef at this place. It was also shown that defendant Guffy had visited appellant shortly-only a few days-prior to the finding of the beef, and that they had been seen together on the road between the John Peifer place and appellant's place. But this evidence is misleading and of no probative force. They were seen on the road together, but this road also leads to the town of Vale, and they were not seen on the road leading from the Vale road to appellant's place. There is no evidence that Guffy was ever at appellant's place.
On behalf of appellant it was shown that on the day prior to Guffy's arrest appellant worked in the hay field on his father's farm all day. A hired man, who worked for John Peifer, and whose veracity is not questioned by the state testified that he...
To continue reading
Request your trial