State v. Sitts

• Decision Date: 24 February 1947
• Docket Number: 8875
• Citation: 71 S.D. 494,26 N.W.2d 187
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. GEORGE SITTS, Appellant.
• Court: South Dakota Supreme Court

71 SD 494, 26 NW2d 187 (1947)

STATE OF SOUTH DAKOTA,

Respondent,

v. GEORGE SITTS,

Appellant.

South Dakota Supreme Court

Appeal from the Circuit Court, Lawrence County, SD

Hon. Charles R. Hayes, Judge

#8875—Affirmed

John T. Heffron, Deadwood, SD

Attorney for Appellant.

George T. Mickelson, Attorney General

E. D. Barron, Assistant Attorney General, Pierre, SD

Clinton G. Richards, State’s Attorney, Deadwood, SD

Attorneys for Respondent.

Opinion Filed Feb 24, 1947

SICKEL, Presiding Judge.

The state’s attorney of Lawrence county filed an information in the circuit court charging George Sitts with the murder of Tom Matthews, a state police officer. Defendant pleaded not guilty. The jury found the defendant guilty as charged in the information and recommended that he be sentenced to death and the court imposed the sentence recommended by the jury. Motions to set aside the verdict and to declare a mistrial and application for a new trial were denied, and defendant has appealed.

In the process of selecting a jury the regular panel was exhausted and several venires were issued. Some of the venires were challenged by the defendant on the ground that Robert Thomas who summoned the panels was at the time a deputy sheriff of Lawrence county; that Sheriff J. O. Twiford, who appointed Robert Thomas as deputy sheriff, had theretofore been disqualified, and the disqualification of the sheriff equally disqualified the deputy sheriff.

The first question is whether Sheriff Twiford had been disqualified. Section 34.3612 of the code provides that:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. ...”

The issue of bias of the sheriff presented by this challenge and the objections thereto was tried by the court. Evidence of implied bias as defined by SDC 34.3618 was not established. The sole question was whether the evidence was sufficient to show actual bias as defined by SDC 34.361 7 (2). That statute defines actual bias as follows:

“Existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the Court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, ... .”

Twiford, the sheriff, testified that he had summoned thirty jurors pursuant to a special venire; that he had taken charge of the investigation of the case from and after January 27, 1946; that he had directed the search for defendant in Lawrence county; that he secured information as to the whereabouts of defendant, and acted upon it, and was in actual communication with officers throughout the county, including the state police; that he used a special apparatus for communicating with law enforcement agents; that he was advised by Ronneberg of the circumstances under which Ronneberg was compelled to aid the defendant in his attempt to escape; that he took Ronneberg’s written statement covering that event. From this evidence it appears that the sheriff performed his official duty in apprehending the accused, and in securing and preserving evidence against him. The sheriff testified as a witness for the State, identifying articles delivered to him including a wallet with $90, a holster, part of a holster, cartridge clip, revolver, road maps and some other articles, all of which were admitted in evidence at the trial without objection. None of the evidence submitted on the trial of this challenge shows that the sheriff ever formed or expressed an opinion as to the guilt of accused, or that he communicated any information to, or tried to influence any juror summoned by him, or that any juror summoned by him was not as intelligent, reliable and impartial as would have been summoned by any other method or by any other person. The facts submitted were wholly insufficient to establish the bias of the sheriff. State v. Hayes, 23 SD 596, 122 NW 652. Nevertheless, the attorney general withdrew his objections to the challenge and the court discharged the panel summoned by Sheriff Twiford, expressly stating that the propriety of the challenge was not decided. Such withdrawal of objections to the challenge terminated the inquiry as to the bias of the sheriff, but it was not an admission of the sufficiency of the evidence to prove such bias, not an admission that the sheriff was actually biased. Neither was the dismissal of the panel summoned by Sheriff Twiford a judicial decision on the merits of challenge.

It is also contended that when the court discontinued the issuance of venires to the sheriff it became the duty of the coroner to summon the jurors and that subsequent venires should have been directed to him according to the provisions of SDC 12.1101. The court did propose that subsequent venires be directed to the coroner, and to such proposals counsel for the defendant stated:

“I would have to also challenge the coroner because he took part in the coroner’s inquest and heard the testimony and the verdict that was returned and he wouldn’t have the qualification of a juror under the statute. I think the duty would resolve upon the court to appoint a Court Elisor.”

No objection to this challenge was made. Without expressly ruling on the challenge, the court abandoned the plan of ordering that the jurors be summoned by the coroner. After challenging the qualification of the coroner, the defendant is in no position now to claim that the coroner was qualified to summon jurors, and that the court erred in not directing subsequent venires to him.

After these proceedings were had the court announced his intention to appoint “a special officer to impanel another special venire,” and ordered that Robert D. Thomas, a deputy sheriff of Lawrence county, should summon thirty additional jurors from the body of the county. The jurors were summoned by Thomas. They appeared, were examined and were accepted or challenged by the State and the defendant without objection to the panel. Later three additional and similar venires were issued and directed to Thomas. Defendant challenged each of the panels summoned pursuant to these three venires on the ground that Thomas “is a deputy sheriff and under the disqualifications of the sheriff he must as a matter of law be disqualified.” As heretofore stated, it was neither proved nor decided that the sheriff, Twiford, was disqualified to summon jurors, and therefore the challenges to the panels summoned by Thomas were properly denied.

Another assignment of error relates to peremptory challenges. The State waived its sixteenth, seventeenth and eighteenth opportunities to exercise peremptory challenges. The defendant waived none. After defendant had exercised his twentieth challenge the court announced “State’s eighteenth.” The State exercised another challenge, to which defendant excepted and the exception was denied. It is appellant’s contention that “each time the state waived a peremptory challenge it lost that challenge, and to allow the state to later take advantage of the challenge that was waived was prejudicial error.” The question is whether the State lost one of its peremptory challenges each time it passed or waived. If so, the State was allowed more peremptory challenges than were permitted by statute.

Each party was entitled to twenty peremptory challenges in this case. SDC 34.3616. The order of exercising peremptory challenges is regulated by SDC 34.3622 which provides:

“... If all challenges on both sides are disallowed, either party, first the state and then the defendant, may take a peremptory challenge, unless the party’s peremptory challenges are exhausted.”

The language of this statute requires that peremptory challenges shall be exercised alternately commencing with the State and terminating with the defendant. Under such statute “the waiver of a challenge exhausts that challenge the same as though it had been used.” State v. Jones, 27 Wyo. 46, 191 P. 1075, 1076; State v. Peel, 23 Mont. 358, 59 P. 169, 75 AmStRep 529; Hurt v. Monumental Mercury Mining Co., 35 Idaho 295, 206 P. 184; O’Malley v. O’Malley, 46 Mont. 549, 129 P. 501, Ann. Cas. 1914B, 662; Gilchrist v. Brande, 58 Wis. 184, 15 NW 817; People v. Rambaud, 78 Cal. App. 685, 248 P. 954.

Lack of information or new conditions may call for an exception to or relaxation of the statutory rule, McDonald v. State, 172 Ind. 393, 88 NE 673, 139 AmStRep 383, 19 Ann. Cas. 763; State v. Crea, 10 Idaho 88, 76 P. 1013, and in such cases the court may in the exercise of a sound discretion, permit the exercise of a peremptory challenge out of the regular order, provided, the party has not exhausted his peremptory challenges, and the jury has not been sworn’ to try the case. State v. Rathjin, 46 SD 412, 193 NW 247; State v. Burmeister, 65 SD 600, 277 NW 30. Here the State had exhausted its twenty peremptory challenges before defendant exercised his twentieth challenge, and, therefore, the exercise of another challenge by the State was not permissible.

Appellant was entitled to a fair trial by an impartial jury, as he says, but “Formal errors or irregularities in impaneling the jurors, even in a capital case, are harmless, unless it affirmatively appears on the record that accused was injured thereby.” 24 CJS, Criminal Law, 5 1900a; People v. Rambaud, 78 Cal. App. 685, 248 P. 954 (hearing denied by SCt); People v. Pilbro, 85 Cal. App. 789, 260 P. 303; Pointer v. United States, 151 US 396, 14 SCt 410, 38 LEd 208; Kloss v. United States, 8th Cir., 77 F2d 462; State v. La Croix, 8 SD 369, 66 NW 944; State v. Johnson, 24 SD 590, 124 NW 847.

In People v. Rambaud, supra, the State declined to exercise some of its peremptory challenges in turn as required by a California statute similar to SDC 34.3622. After the defendant had exhausted all of his...