State v. Sauter
| Citation | 205 N.W. 25,48 S.D. 409 |
| Decision Date | 12 August 1925 |
| Docket Number | 5526. |
| Parties | STATE v. SAUTER. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Dewey County; W. F. Eddy, Judge.
Henry Sauter was convicted of manslaughter in the first degree, and he appeals. Affirmed.
W. M Potts, of Mobridge, and P. O. Urban, of Timber Lake, for appellant.
Buell F. Jones, Atty. Gen., and George Puder, State's Atty., of Timber Lake, for the State.
In this case the defendants John Pfaff, Katie Pfaff, and Henry Sauter were tried for murder. Separate trial was not requested by either of them, and they were all put upon trial together. Julius Skaug and T. C. Burns appeared as counsel for all the defendants. After the trial had been in progress one or more days these attorneys announced to the court that facts had come to their knowledge that made it impossible from them longer to properly represent all the defendants, and that they wished to withdraw as counsel for defendant Sauter. Immediate steps were taken to secure other counsel for Sauter, and W. M. Potts of Mobridge and P. O. Urban of Timber Lake were called into the case to act as attorneys for Sauter. Skaug and Burns continued to act for the Pfaffs. Sauter then moved that as to him the case be dismissed. This motion was denied. He then moved for a separate trial, which motion was also denied. The trial then proceeded with the result that Sauter and John Pfaff were convicted of manslaughter in the first degree, and Katie Pfaff was acquitted. Sauter's motion for a new trial was denied and he alone brings the case here on appeal.
As it appears from the record, the facts relative to the crime charged necessary to understand the questions of law presented by appellant are about as follows: Appellant and family and the Pfaff family were neighboring farmers in Dewey county. Robert Dupree and Douglas Dupree were Indians, each of whom had a family and lived on a farm in the same neighborhood with the defendants. On the evening of January 5, 1922, appellant, with Robert and Douglas Dupree, went to the home of the Pfaffs. There is a dispute as to whether they had been invited by Pfaff, but they were all on friendly terms with each other, and were made welcome at Pfaff's. They had a quantity of "moonshine" whisky. Whether appellant took the whisky there with him or Pfaff furnished it is in dispute; but how it came there is not material. Appellant and the two Indians drank freely of the whisky. Pfaff claimed that he did not drink any, and in this he is corroborated by the testimony of his wife. Appellant claims Pfaff drank as freely as the others, and what followed indicates that the four men soon became more or less intoxicated, and soon engaged in a drunken brawl. The testimony of all the defendants is to the effect that the Indians started the fight, if it could be called a fight. After struggling about on the floor for some time, appellant and John Pfaff succeeded in getting the Indians out of the house. The fight continued some little time longer, and then what happened is in dispute. Appellant testified that Pfaff seized an ax that was lying near by and chopped or beat the Indians on the head until they were rendered insensible; then went into the house; got a shotgun; and fired one or more charges of shot into the body of each of them. Pfaff testified that it was appellant who got the gun and shot the Indians, and then beat them on the head with the ax. Katie Pfaff testified that it was appellant who came in and got the gun, but she did not see who did the shooting or who used the ax, and who of these witnesses, if either, were telling the truth, there is nothing upon which to base a guess. After a lengthy consideration as to what disposition should be made of the bodies of the Indians they were loaded into appellant's sled and taken to an abandoned farm in the neighborhood and thrown into an old well. Pfaff testified that it was appellant who hauled the bodies away from his place; that he, Pfaff, did not go along and did not see where appellant put the bodies. Appellant testified that Pfaff went with him, and that they were together when they threw the dead Indians into the well. We believe that the evidence independent of the testimony of either of the defendants, proves to an absolute certainty that appellant and John Pfaff were together when the bodies were thrown into the well.
During the day and night following the homicide defendants came to the conclusion that the affairs must be reported to the peace officers of the county, but that, instead of reporting the facts relative to the occurrence, they would report that the Indians came to the house when Katie Pfaff was alone with her children and assaulted her, and that she killed them in her own defense. They figured out to their own satisfaction that in case of a trial for the homicide a jury would not convict a woman under the circumstances to be shown by their explanation.
Pursuant to the above plan all of the defendants went to Isabel on the second day after the tragedy and gave the report as agreed upon. All three were arrested on a charge of murder. A preliminary examination was had. They testified as agreed upon, but all were held for trial, and an information was filed charging them all with the murder of Robert Dupree. They stuck to the story as agreed upon until the time of the trial, and went into the trial on the theory that it was Katie Pfaff alone who did the killing, but differences arose between them after the trial had been in progress a day or two. The Pfaffs decided to save their own skins if they could by testifying that it was appellant who did the killing and who disposed of the bodies, and that they, the Pfaffs, took no part whatever in the commission of the offense. It was this circumstance that necessitated the withdrawal of Skaug and Burns as attorneys for appellant and the calling of Potts and Urban into the case.
Over the protest of appellant the court continued with the trial of the case almost immediately after the arrival of Mr Potts, and it is the contention of appellant that he was prevented from...
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