State v. Rober

• Decision Date: 18 May 1972
• Docket Number: No. 10954,10954
• Citation: 197 N.W.2d 707,86 S.D. 442
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. William (Bill) ROBER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 707

197 N.W.2d 707

86 S.D. 442

STATE of South Dakota, Plaintiff and Respondent, v. William (Bill) ROBER, Defendant and Appellant.

No. 10954.

Supreme Court of South Dakota.

May 18, 1972.

Gordon Mydland, Atty. Gen., William J. Srstka, Jr., Asst. Atty. Gen., Pierre, for plaintiff and respondent.

Gene E. Pruitt, Willy, Pruitt & Matthews, Sioux Falls, for defendant and appellant.

DOYLE, Judge.

Defendant was convicted of grand larceny in a trial by a jury in the Circuit Court of Minnehaha County, South Dakota.

On September 18, 1970, an appliance dealer purchased two new color TV sets from Warren Supply Company in Sioux Falls, South Dakota. The dealer, after placing the two TV sets in the box of his pickup truck, parked the truck in the parking lot behind a Sioux Falls bar. When the dealer returned to his truck, some two hours later, the TV sets were gone.

That same evening a Sioux Falls resident purchased a color TV set for $75, plus a trade-in of a used TV set. She discussed the purchase of the set with defendant's companion, Fred Connor, and made the purchase. The set was delivered to the purchaser by the defendant and Connor with the payment made to Connor.

The case was investigated by Sioux Falls police who located the TV set, identified the set as being stolen, and later arrested the defendant. At the time of his arrest, defendant at first denied knowing Connors but later admitted knowing him, but stated that he had not seen him for several months. The defendant later admitted helping Connor deliver the TV set to the purchaser. Defendant contends that he was but a delivery boy and received $10 from Connor for his aid in making the delivery of the TV set to the purchaser. The defendant did not testify at the trial and there was no comment by the court or counsel upon his failure to so do.

Defendant contends that the evidence, being circumstantial in nature, is insufficient to sustain the verdict, and the requirements of defendant's guilt must be proven beyond a reasonable doubt. The principle that circumstantial and direct evidence are of equal weight has long been the rule of this state. The Territory v. Egan, 1882, 3 Dak. 119, 12 N.W. 568; State v. Peck, 1967, 82 S.D. 561, 150 N.W.2d 725, and it is permissible to prove all elements of a crime with circumstantial evidence. State v. Peck, supra. Defendant cites from State v. Ferguson, 48 S.D. 346, 204 N.W. 652, the following:

'As to circumstantial evidence in a criminal case, there is but one rule of law, namely, a quantitative rule that the circumstances proved be sufficient to exclude to a moral certainty every other hypothesis excepting that of guilt.'

A statement of similar import is also cited in State v. Scott and Eckerd, 84 S.D. 511, 173 N.W.2d 287. Defendant contends that the evidence in this case is not such that every other hypothesis except that of guilt is excluded. We have amplified the above quoted in State v. Thomas, 78 S.D. 568, 105 N.W.2d 549, by stating:

'However, the last phrase of this rule does not mean that the evidence must be such as to exclude every possible hypothesis of innocence. Rather, it requires only the exclusion of reasonable hypotheses of innocence.'

Upon the record here we conclude there to be ample evidence to base a jury finding adverse to the defendant.

Defendant contends error in permitting Odde Gould to testify on behalf of the state because his name was not endorsed on the information as required by SDCL 23--20--4. It appears that the witness was well known to both the state and the defendant; he testified at the preliminary hearing, his name was on a list of witnesses provided the defendant by the state prior to the commencement of the trial, but by oversight the witness' name was not endorsed on the information. No prejudice, surprise, or bad faith on the part of the state's attorney, is claimed by the defendant, nor is any apparent in the record. The trial court granted the state's motion to endorse the name of Gould on the information, over defendant's objection, and allowed him to testify. No postponement of the trial was requested by the defendant. The endorsement of the names of witnesses upon an information at the trial is largely within the discretion of the trial court, and in the absence of some showing of abuse or some bad faith on the part of the state's attorney in purposely withholding the name of such witness until such time, resulting in substantial prejudice to the accused, the order of the court permitting the endorsement of such names will not constitute grounds for reversal. State v. Fulwider, 28 S.D. 622, 134 N.W. 807; State v. Butler, 71 S.D. 455, 25 N.W.2d 648. We find no error in permitting the witness Gould to testify.

Defendant contends the giving of South Dakota Pattern Instructins, Criminal, Vol. II, 3--7--370c, which reads:

'If from the evidence you should be convinced beyond a reasonable doubt that the personal property in question was stolen, and that soon after its theft the defendant was in possession of it, such is a circumstance which you may take into consideration with all the other evidence in arriving at your verdict, and unless such possession is Satisfactorily explained by the facts and circumstances brought out upon the trial, it is sufficient upon which to base a conviction, provided that upon the whole case and all of the evidence you are satisfied beyond a reasonable doubt of the defendant's guilt. But if you believe that the recent possession by the defendant of the property, under the circumstances shown is consistent with his innocence, it would be your duty to acquit him, unless you find beyond a reasonable doubt from other evidence in the case that the defendant is guilty' (Emphasis supplied)

is error in that...