State v. Pirkey

• Decision Date: 19 January 1910
• Citation: 124 N.W. 713,24 S.D. 533
• Parties: STATE v. PIRKEY.
• Court: South Dakota Supreme Court

124 N.W. 713

24 S.D. 533

STATE v. PIRKEY.

Supreme Court of South Dakota

January 19, 1910

On petition for rehearing. Former opinion reversed, and new trial granted.

For former opinion, see 118 N.W. 1042.

Corson J., dissenting.

SMITH J.

This case is before us on a petition for rehearing. The former decision of the court will be found in 118 N.W. 1042. The petition for rehearing presents for consideration a single proposition. A brief statement of the facts is, perhaps necessary to a clear understanding of the question involved.

By an information filed in the circuit court of Lyman county the accused was charged with the crime of receiving stolen property, to wit, 17 head of horses, alleged to have been stolen by William Morgan, Samuel Watkins, Edward Whiting, and David Raymond. The transaction in which the accused purchased and came into possession of the stolen property occurred at a ranch in Lyman county kept by one Joe De Marsche. It appears in evidence that Morgan had brought the horses from another ranch kept by one Dave Colombe. The evidence that the horses were stolen by Morgan and his associates was undisputed, as was the fact that the accused had received them from Morgan in exchange for two other horses and $100 in cash. It thus appears that the vital issue of fact in the case was whether the accused had purchased and received the horses from Morgan knowing them to be stolen property.

In his address to the jury the state's attorney used the following language: "That Mr. Pirkey when he went to get those horses went down to Joe De Marsche's, that noted rendezvous of horse thieves, and that he knew that Morgan and his associates had just come from Dave Colombe's place another notorious rendezvous of horse thieves." The record discloses the following proceedings with reference to these remarks by the state's attorney: "Thereupon the attorney for defendant immediately called the attention of the court to this statement made by the state's attorney, and objected thereto, and requested the court to direct the attorney to cease using such language, and to direct the jury not to consider such language, for the reason that there was no evidence to warrant the use of such language, or to in any manner support the same, all of which the court refused to do; and the only statement made by the court in reference thereto was as follows: 'Oh, everybody knows what kind of places those are'-to all of which the defendant thereupon duly excepted." In the former opinion of this court Judge Corson says: "It is claimed by the Attorney General that there was some evidence in the case from which the inference might properly be drawn that the places were rendezvous for criminals, and that the statement made does not therefore entitle the defendant to a reversal of the judgment. We are unable to agree with the Attorney General in this contention, and we think it doubtful, from an examination of the evidence, if there was sufficient evidence to justify the remarks of the counsel or those of the court." A re-examination of the evidence satisfies us that this conclusion was fully justified, and that nothing appears in the evidence which would warrant the statement that the places referred to were rendezvous for horse thieves. The question decisive of the case upon this rehearing is whether, under the facts and circumstances in evidence before the jury, these statements by the prosecuting...