State v. Pock

• Decision Date: 10 May 1915
• Docket Number: 3708
• Citation: 152 N.W. 507,35 S.D. 393
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. LOUIS FRANK POCK, Defendant and appellant.
• Court: South Dakota Supreme Court

35 S.D. 393, 152 N.W. 507 (1915)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v LOUIS FRANK POCK, Defendant and appellant South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. John F. Hughes, Judge #3708--Affirmed Harry P. Atwater Attorney for Appellant. C.C. Caldwell, Attorney General Byron S. Payne, Assistant Attorney General Attorneys for Respondent. Opinion filed May 10, 1915; Rehearing denied June 21, 1915

GATES, J.

The defendant, convicted of larceny, has appealed from the judgment and order denying a new trial, assigning as error two portions of the instructions to the jury.

The following is the first portion claimed to be objectionable:

"Under the law of this state the defendant does not have to take the witness stand and testify in criminal actions; but the defendant has seen fit in this case to take the stand and testify before you, and you will weigh his evidence under the same rules as you would weigh that of any other witness, but taking into consideration his interest in the result of your verdict in this case." It is claimed that the defendant, being a competent witness, had the right to have his evidence weighed by the same rules as that of other witnesses in this case, and to have it go to the jury without any comment thereon by the court. The following sentence from the opinion in State v. Smith, 8 S.D. 547, 67 N.W. 619, is relied on:

"The testimony of each witness should be subjected to the same test, and the court should studiously avoid any expression calculated to discredit any particular portion of the testimony."

Immediately preceding the part of the instruction objected to, the court had charged the jury:

"You are also the judges of the weight of the evidence, of credibility of the witnesses, and it is for you to examine all the evidence and weigh it, and carefully consider the testimony of each witness, and weigh that, giving the testimony of each witness such credibility as you deem proper in the case, in determining whether the testimony of that witness is true or not. And in weighing the testimony of witnesses you have a right to take into consideration their means of knowing the facts to which they testify, and also their conduct and demeanor upon the witness stand, and their interest, if any, in the result of the action, or of your verdict in this case."

We fail to see that defendant's testimony has not been subjected to the same test as that of other witnesses, nor can we find therein any expression calculated to discredit defendant's testimony.

The second portion of the charge objected to is as follows:

"Now, gentlemen, as I said a while ago, possibly the principal question, at least one of the principal questions, in this case, and most important question in this case for you to consider, will be the question of the intent of the defendant. The defendant has taken the stand and testified that he did not have the intention of depriving Larsen of the horses; that his intention was, I believe, to return them at some time, and to keep them from bothering him and trespassing upon his lands. This testimony, gentlemen, is competent. He had a right under the law to take the stand, and to say to you under his oath whether or not he intended to steal those horses. But, while this testimony is competent, it is not conclusive upon you upon this question of...