State v. Ross

• Decision Date: 11 February 1924
• Docket Number: 5173. [*]
• Citation: 197 N.W. 234,47 S.D. 188
• Parties: STATE v. ROSS.
• Court: South Dakota Supreme Court

197 N.W. 234

47 S.D. 188

STATE v. ROSS.

No. 5173. ^[*]

Supreme Court of South Dakota

February 11, 1924

Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.

John C Ross was convicted of preventing the appearance of a witness in a particular case, and he appeals from judgment and order denying new trial. Judgment and order affirmed.

H. G Giddings, of Mitchell, Kirby, Kirby & Kirby, of Sioux Falls for appellant.

Byron S. Payne, Atty. Gen., and L. E. Waggoner, State's Atty., of Sioux Falls, for the State.

POLLEY J.

Appellant was convicted in the municipal court of Sioux Falls upon information charging that he prevented one Katherine Kline from appearing as a witness in a certain case then pending in said court against one August Seubert, the said Katherine Kline being a material and necessary witness in the said case. Upon appeal to the circuit court of Minnehaha county the venue was changed to Davison county, where appellant was again convicted.

The information charges that defendant first induced the said witness to make a false affidavit relative to the facts in said case; that he then told her that it would be necessary for her to leave the state to avoid being arrested for signing the said false affidavit; that he paid her way to Chicago and told her not to let her whereabouts be known nor to return to Sioux Falls for at at least six months. The information is drawn under the provisions of section 3781, Code 1919.

Appellant demurred to the information, on the ground that the facts alleged do not bring the case within the provisions of the said section. The section, so far as material here, reads as follows:

"Suppressing Evidence. Every person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or producing therein any book, paper, or other matter or thing which might be evidence, or for procuring the attendance or testimony of any witness therein. ***"

This contention is based upon the use of the word "for" in the fifth line of the section. The use of the word "for" in this line renders the phrase in which it is used meaningless, and it is apparent from a casual reading of the section that the word "from" was intended to be used in the place of "for." With "from" substituted for "for" the entire section is intelligible, and that the word "from" was intended to be used, and that the use of "for" is a typographical error is apparent from an examination of this section, where it appears in earlier publications. It appears as section 186 in the Penal Code of 1864-65, as section 187, Penal Code 1877, as section 6387, Compiled Laws 1887, and as section 193 in Rev. Pen. Code 1903, in all of which "from" is used instead of "for".

Appellant next contends that the information is insufficient because it does not allege that the witness had been subpoenaed to attend the hearing of the said case. But this is not necessary. To maliciously prevent a party to an action from procuring the attendance of his witnesses is sufficient under the statute.

It is next contended by appellant that the verdict of guilty is by a jury of eleven men, one of whom was not sworn as a juror, and for this reason he is entitled to a new trial. This contention is based upon the following facts: On the morning of the last day of the trial, word was received by the court that a member of the family of one of the jurors, Gurius by name, was seriously ill. This information was given to the attorneys for the state and for the defendant. The court then asked them if they were willing to have this juror excused and to proceed with the trial of the case with eleven jurors. This was assented to, and it was stipulated and agreed in open court, and so noted by the court reporter, that said juror might be excused and that the trial should proceed with only eleven jurors. The juror was then told that he might be excused. He immediately went to a telephone in the building and called up his home and upon inquiry learned that non one in his family was sick. He then returned to the courtroom and reported what he had learned. Upon inquiry being made it was learned that the sickness was in the family of another juror, Knappe by name. Thereupon it was stipulated by counsel for the state and for defendant that the name of Knappe might be substituted in said stipulation for Gurius, that Gurius should return to his place in the jury box and that Knappe should be excused. This was done accordingly, and the trial proceeded with eleven jurors. When Gurius went to the telephone he was accompanied by a deputy sheriff, who remained with him all the time until he returned to the courtroom. Nothing was said relative to the case to Gurius or in his presence while he was absent from the courtroom, nor did he have any conversation with any one except his talk with his family over the telephone, which related only to the reported sickness in his family, nor was any testimony taken or any proceedings of any kind had in the case during his absence from the jury box. The trial then proceeded with the eleven jurors, but, when both sides rested and the court was about to charge the jury, the defendant objected to further proceedings in the case, and moved that the case be dismissed on the ground that the juror Gurius had been-

"released and discharged from the jury by the court and that such discharge and release was final, and that the juror after returning and now sitting on the case is not a juror at all, is not under oath, having been released from his oath, and is an alien party to this case."

The motion was denied, and error is assigned. This assignment raises a question never before presented to this court, nor so far as we know to any other.

Appellant was entitled to have the jury that tried his case sworn and impaneled in the manner provided by law, and, had the juror not been sworn at all, even though as the result of oversight on the part of the court and counsel, there, of course, would be merit in appellant's position. But this juror had been regularly sworn, and there is nothing to indicate that he at any time felt himself released from the obligation of his oath, taken at the beginning of the trial. There is no contention that he violated his oath in any manner, and there was no error in overruling appellant's motion.

After the verdict had been returned, appellant moved to arrest the judgment and dismiss the case on the ground that the verdict had been returned by a jury of eleven men only. This question is not new to the courts, nor are the conclusions reached by the various courts harmonious. Section 6, art. 6, of our Constitu...