State v. Smith

• Decision Date: 11 February 1924
• Docket Number: 5418
• Citation: 197 N.W. 231,47 S.D. 216
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. W. L. SMITH, Defendant and appellant.
• Court: South Dakota Supreme Court

47 S.D. 216

197 N.W. 231

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

W. L. SMITH, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Corson County, SD Hon. W. F. Eddy, Judge #5418--Affirmed Morrison & Skaug, Mobridge, SD Attorneys for Appellant. Buell P. Jones, Attorney General Benj. D. Mintener, Assistant Attorney General, Pierre, SD Attorneys for Respondent. Opinion filed February 11, 1924

GATES, P. J.

Defendant appeals from a judgment of convic tion for grand larceny and from an order denying a new trial.

Appellant's first point is that the committing magistrate did not comply with the requirement of section 4581, Rev. Code 1919, and therefore that the trial court was without jurisdiction to try the case. It is true that the magistrate did not literally comply with that section, but the transcript from the magistrate shows:

"Defendant appeared, and hearing was had, and after hearing the evidence the court decided to hold the defendant to the next term of the circuit court. Bond was fixed at $2,000, which was furnished and accepted and defendant released."

As pointed out in State v. Johnson, 149 N.W. 730, the statute (now section 4707, Rev. Code 1919) does not require that an order be made holding the accused to answer before an information can be filed, but only that a preliminary examination shall be had. Also as pointed out in said case, the statute (now section 4762, Rev. Code 1919) does not constitute irregularities in, or omission to make, the order required by section 4581, Rev. Code 1919, a ground for quashing the information. Hence it cannot be said that the failure of the committing magistrate to comply with said section 4581 affects the jurisdiction of the trial court after the information is filed. We do not need to consider what appellant's rights might have been had he proceeded to test the validity of his committment by habeas corpus before the filing of the information.

The next point is that error was committed in permitting the witness Eckert to testify as to the ownership of the stolen cattle without requiring a proper foundation for such testimony. The record shows that Eckert was qualified to give such testimony.

It is next urged that the court erred in refusing permission to cross-examine Eckert as to his hostility to Godfrey, who was a codefendant, but who was tried separately. If the defendant and Godfrey had been tried together, no doubt the trial court should have permitted such cross-examination; but, under the circumstances, we can perceive no error in the ruling. It is not claimed that the witness was hostile to this defendant.

The next complaint is stated in the following language:

"The court also refused to permit the appellant to show by cross-examination of the witness Eckert how much he had been drinking at the time when he made the examination of the hides and heads about which he testified, and refused to permit the appellant to show that such witness was intoxicated at the time in question, and that by reason of such intoxication the powers of perception and memory of the witness was impaired, thereby depriving the jury of evidence affecting the credibility of the witness and the weight of his testimony."

The record shows that the time of the alleged intoxication was Sunday night, whereas the time he made the examination of the heads and hides of the cattle was Sunday morning. We perceive no prejudicial error in the rulings.

Appellant next complains as follows:

"The court permitted the state to introduce evidence of an alleged confession without requiring any foundation showing that same was voluntarily given and permitted evidence on behalf of the state of said confession after it had been shown that same was given in pursuance of a threat of prosecution and after language had been used implying a promise of reward if a statement was made."

The admissions claimed to have been made by appellant are detailed under the next paragraph. We do not think that the law upon this question as laid down in. State v. Landers, 114 N.W. 717, and State v. Vey, 114 N.W. 719, was violated.

It is next urged that prejudicial error was committed by the trial court in refusing to receive in evidence an alleged written confession. The information in this case jointly charged defendant and one Godfrey with the crime of larceny of three steers, the property of the C. O. D. Cattle Company. Separate trials were had. It appears that appellant and Godfrey gathered up some cattle and butchered them. It appears that three steers and one cow were butchered , and that the cow belonged to appellant. The testimony on the part of the state tended to show that the three steers were the property of the C. O. D. Cattle Company, and branded "19." Upon the witness stand both appellant and Godfrey testified that two of the steers were branded "L--" and one branded "6-G." The sheriff testified in regard to a conversation with shortly after the butchering:

"I cannot give the exact words, but he wanted to know what this was all about, and I told him. I guessed he ought to know; and he said, 'Is it about the butchering?' and I said, 'Yes.' He then said, 'I only butchered one cow, and that was my own.' I would not say the exact words I used, but I said, 'That story alone will convict both of you, because Mr. Godfrey said he butchered the cow and you butchered three steers.' He said, 'For God's sake, Andy, is there not some way out of this under the circumstances?' I said, 'Yes; make a clean breast of it, and tell us all you know.' He said, 'All right'; he would do so. I said, 'Go on and tell us what you did. ... He said he butchered one cow and Godfrey three steers. I asked him what those were, and he said one was a G-6 and two steers belonged to the C. O. D. Cattle Company. I said, 'Do you want to make that as a confession?' and he said, 'Yes.' I said, 'I will call the state's attorney, and you can say it in his presence.' I called out the state's attorney, and he repeated the same words in substance. ... The state's attorney said, 'We will go over some place and write this up'; and we proceeded over to the bank, at that time which was in the hotel, where we made up the statement and he signed it. I cannot remember the words in detail as to what was said by Mr. Sutcliffe and the defendant when we got over to the bank, but anyway he went ahead and prepared this statement, and when he got to where he was to identify those cattle he said, 'How were they branded, C. O. D.?' or 'Were they branded C. O. D.?' 'No,' he said; 'they were branded 19 on the right shoulder.' He then completed the statement and read it to him and had him swear to it under oath, and he signed it. I signed the statement as a witness. ... Mr. Sutcliffe wrote down what Mr. Smith said, and I do not suppose he wrote down anything he did not say. He wrote down the substance of his confession.

"Q. I am asking you, did Mr. Smith say that Mr. Godfrey claimed these steers?

"A. He said he butchered them. He did not say anything about claiming them.

"Q. Did Mr. Smith at that time say Godfrey claimed those steers?

"...