State v. Shea
| Decision Date | 16 March 1931 |
| Docket Number | No. 6847.,6847. |
| Parties | STATE v. SHEA. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.
Roy Shea was convicted of robbery, and he appeals.
Affirmed.Lloyd E. Waggoner and Theodore R. Johnson, both of Sioux Falls, for appellant.
M. Q. Sharpe, Atty. Gen., and Ray F. Drewry, Asst. Atty. Gen., for respondent.
[1] Appellant was jointly charged with one Hanley and one Driscoll with the robbery of a bank at Huron. He was granted a separate trial, and from the judgment on conviction, and from the order denying motion for new trial, he appeals. Opinion has this day been filed affirming the conviction of Hanley and Driscoll. State v. Hanley and Driscoll, 235 N. W. 516. As in that case, one of the errors assigned is the disallowance of a challenge to the panel. In this case, however, the irregularities complained of were in the selection by the county commissioners from the jury list filed with the county auditor by the assessors, the method of which is prescribed by section 5289, R. C. 1919. Section 5290 contains the following: “Provided, however, that any irregularity in the acts of the assessors in furnishing the list of persons subject to jury duty, or of the county commissioners in drawing, selecting or furnishing the names of jurors to the clerk of courts, shall not invalidate the list so furnished to such clerk of courts.” This same question was passed upon in State v. Karlen (S. D.) 231 N. W. 915. Even if the language above quoted from section 5290 is not decisive of the matter, yet the burden was on appellant to prove the irregularities of which he complains. It is doubtful whether he has done so, and he has certainly shown no prejudice therefrom. State v. Smith (S. D.) 232 N. W. 26.
Appellant assigns as error four instances of alleged misconduct of the state's attorney. In the first instance counsel for defendant as well as the state's attorney, participated in verbal sorties across the counsel table, and appellant did not request the trial court for an admonition. In the third instance there was neither objection nor exception, no request for admonition nor prejudice shown. In the fourth instance, the court should have, on its own motion, promptly and unmistakably put an end to the state's attorney's comments on the evidence while appellant's counsel was making an objection. But the court did sustain the objection, and Mr. Waggoner of appellant's counsel, not only did not ask the court to admonish the state's attorney, but manifested some willingness and ability at admonishing the state's attorney himself.
[2] In considering the second instance of assigned misconduct, it should be borne in mind that the big question at the trial was the identification of the defendants as those who robbed the bank. Lois Gannaway had testified she was leaving the bank with her arms full of parcels just as appellant and another were about to enter. She hesitated at the door, expecting appellant to open it for her. When he did not do so she opened it and held it open while appellant and his companion entered. She noticed him particularly because he was not gentlemanly enough to open the door for her. She noticed him also because he was pretty good looking. The cross-examination of the witness by Mr. Waggoner proceeded:
“By the Court: Well the form of that...
To continue reading
Request your trial