State v. Raice

• Decision Date: 17 November 1909
• Citation: 123 N.W. 708,24 S.D. 111
• Parties: STATE v. RAICE.
• Court: South Dakota Supreme Court

123 N.W. 708

24 S.D. 111

STATE v. RAICE.

Supreme Court of South Dakota

November 17, 1909

Appeal from Circuit Court, Lawrence County.

Elija Raice was convicted of manslaughter, and he appeals. Affirmed.

Henry Frawley, Henry G. Perry, and John T. Heffron, for appellant.

S. W Clark and Robert P. Stewart, for the State.

McCOY J.

In this case the defendant, Elija Raice, was informed against and charged with the murder of one Mitchel Ogresto. On the trial the jury found the defendant guilty of manslaughter in the first degree, and, on judgment, was sentenced to a term in the penitentiary. Defendant brings the cause to this court alleging numerous errors to have occurred on the trial.

There is but little conflict in the evidence. From the evidence preserved in the record, there seems to be no dispute but that on the night of May 2, 1908, the defendant was engaged in operating a gambling wheel in the back room of his saloon in the city of Lead; that Mitchel Ogresto came into the room and interfered with the game; that defendant told him to leave the room, and Ogresto said he would not; that a quarrel ensued, and defendant went out into the barroom followed by Ogresto; that Ogresto there called defendant many mean and insulting names calculated to highly provoke and anger defendant; that defendant first picked up a stove poker and told Ogresto to leave his place of business, and Ogresto refused to go and continued to call defendant insulting names; that defendant then stepped behind the bar, picked up a revolver, and, stepping from behind the bar, shot Ogresto where he was standing some 12 or more feet from defendant from the effects of which shot Ogresto the next day died. The evidence is undisputed that, at the time the shooting occurred, Ogresto made no offer to assault or otherwise molest defendant, other than to call him insulting names. Defendant, who testified in his own behalf, made no claim that he shot in self-defense, nor was self-defense one of the issues presented by the evidence. Defendant testified that he had no recollection of having shot Ogresto; that his mind was a blank at that time.

The first error alleged is based upon the rejection of certain evidence. On the trial, after having testified that he was afraid of Ogresto, defendant was asked the following question: "Why were you afraid of him?" To which question the state objected as irrelevant, immaterial, and incompetent, and no proper foundation laid. The objection being sustained, the defendant excepted. We are of the opinion that the ruling of the court was clearly right. When self-defense is not an issue, it is immaterial and irrelevant why defendant was afraid of deceased, and the rejection of such evidence clearly could not have prejudiced defendant and, besides, the question propounded called for the conclusion of the witness, and not for the statement of a fact.

On the trial defendant, when on the witness stand, was asked the question why he had sufficient mental capacity to go and get the gun if he did not know what he was doing, to which question defendant objected on the ground that it was a matter for the jury to decide. While we are of the opinion that this question called for a conclusion, and not a statement of fact, still we are of the opinion that, although defendant was required to answer that he did not know how he did it, it in no manner prejudiced the defendant and had no possible tendency to affect the verdict. The subject of the mental capacity of the defendant was gone into on the direct examination, and the state had the right to cross-examine upon the same subject.

Batinovich, the business copartner of defendant, was called as a witness, and asked if he had not, at some other time about two weeks prior to the shooting in question, had some trouble with Ogresto in the same saloon, and that prior to the shooting he had informed defendant of it. The court sustained an objection to this evidence on the ground that it was irrelevant and immaterial. We are of the opinion that the ruling was correct. Proof that deceased had been guilty of acts of violence to third persons of which the defendant had been informed is inadmissible. State v. Ronk, 91 Minn. 419, 98 N.W. 334; People v. Henderson, 28 Cal. 465; State v. Andrews, 73 S.C. 257, 53 S.E. 423; Thomas v. People, 67 N.Y. 218; Croom v. State, 90 Ga. 430, 17 S.E. 1003.

The defendant assigns as erroneous the rulings of the trial court in excluding, on objections of the state, evidence offered by defendant as to the reputation of Ogresto, deceased, for turbulence and violence in the city of Lead. This character of evidence is inadmissible where self-defense is not claimed and is not an issue in the case. Unless the circumstances show that the defendant acted in self-defense, or was in imminent...