State v. Smith

• Decision Date: 17 December 1929
• Docket Number: 6722
• Citation: State v. Smith, 56 S.D. 238, 228 N.W. 240 (S.D. 1929)
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. HARRY SMITH, Appellant.
• Court: South Dakota Supreme Court

56 S.D. 238

228 N.W. 240

STATE OF SOUTH DAKOTA, Respondent,

v.

HARRY SMITH, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Lyman County, SD Hon. John G. Bartine, Judge #6722—Reversed J. W. Jackson, Kennebec, SD Attorney for Appellant. M. Q. Sharpe, Attorney General R. F. Drewry, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion Filed Dec 17, 1929 (See, also, 228 NW 251)

CAMPBELL, J.

Defendant was convicted of the crime of grand larceny, and has appealed.

Appellant predicates error upon a separation of the jury after submission of the cause and before agreement. The case was submitted to the jury about noon on June 15th, and the verdict was returned into court on June 16th. The showing with reference to the matter of separation is by affidavits, and is substantially as follows:

One Dorman makes affidavit that about 6 o’clock in the evening of June 15th he, in company with defendant, was standing on a street corner in the town of Kennebec, where the cause was tried, and saw the jury coming down from the courthouse on the way to a restaurant for the evening meal; that affiant first observed that two men were walking together approximately 75 feet in the rear of the main body; that he then observed that there were only eleven jurors in the main group, and that the two men in the rear were the juror Schnoose and the sheriff of Lyman county, Morris by name; that at the Commercial State Bank corner the main body of jurors continued north along the street to a restaurant, and entered therein, but the juror Schnoose and the Sheriff Morris turned east at said corner, crossed the street, got into an automobile, and drove to and into the Snowe garage; that the juror Schnoose and the sheriff, as they walked along the street together in the rear of the other jurors, and as they walked over to the car, appeared to be in earnest conversation; that affiant watched the garage several minutes to see the sheriff and juror come out, but they did not, whereupon affiant, accompanied by defendant, walked down the street toward the garage, and, as he approached the door of the garage, could hear the sheriff and the juror Schnoose in earnest conversation, but could not distinguish what they said; that, after standing a moment at the door, affiant walked on into the garage, and, as he advanced from the door, saw Schnoose and Morris come out from behind some stored cars, leave the garage together, and proceed to the restaurant where the other jurors had previously entered. Affiant places the total elapsed time of these transactions at from four to ten minutes. Affiant further states that the sheriff, Morris, was one of the chief witnesses for the state at the trial, and appeared to show much interest in securing the conviction of defendant, and that the said Schnoose and Morris, from their demeanor and tone of voice both on the street and in the garage, seemed to be earnestly debating some matter.

The affidavit of appellant, Smith, is to the same general substance and effect, except that he places the total elapsed time from the moment when he first observed the sheriff and the juror Schnoose separated from the other jurors and engaged in conversation until the moment when they re-entered the restaurant and rejoined the other jurors at from ten to fifteen minutes.

The affidavit of the sheriff, Morris, is to the effect that while he was a witness in the case as to some matters having to do with the repossession of the alleged stolen property which was for a time in his possession and custody, yet his only connection with the case was in his official capacity as sheriff; that at the time in question he was walking down the street behind the jury for the purpose of going to the restaurant and arranging for the meal for the jury, it being the custom in Lyman county for the sheriff to attend to such arrangements; that, as they were walking down the street, it started to rain, and one of the bailiffs requested affiant to go with the juror Schnoose to put his car, which was standing in the street, in a garage; that affiant crossed the street with Schnoose to a point where the car was standing, approximately 100 feet from the garage, and both got into the car, and Schnoose backed it out from the curb and drove it onto the floor of the garage; that thereupon affiant and Schnoose got out of the car, one from each side, and both immediately left the garage and went to the restaurant and rejoined the remainder of the jury. Affiant places the elapsed time at five minutes or thereabouts, denies that he was in earnest conversation with Schnoose back of any automobile in the garage or elsewhere, and denies any previous acquaintance with Schnoose. Affiant states that nothing whatever was said between himself and Schnoose regarding the case which the jury had under consideration, and that the only conversation was the passing of a remark about weather and crop conditions.

The juror Schnoose makes affidavit that on the way to supper, noticing that it was starting to rain, he asked one of the bailiffs if he could put his car in the garage; that the bailiff said he would ask the sheriff, who was walking down the street about ten feet back of the jury; that the bailiff dropped back and spoke to the sheriff, and then told affiant that he could put his car in, and that the sheriff would accompany him; that the jury continued on down the street, and affiant and sheriff crossed the street to the car; that both got in the car, and affiant drove the car down the street about 100 feet to the garage, and left the car on the floor in the front part of the garage; that affiant asked a garage attendant if he could leave the car there, and was told that he could, whereupon affiant and the sheriff immediately left and went to the restaurant where the other jurors were. Affiant says that he supposed the sheriff was as much in charge of the jury as the bailiffs were, and denies that there was any earnest or private conversation between himself and sheriff. Affiant states that there was no talk of any kind about the case, and that the incident had no influence whatever upon him as a juror. Affiant places the total elapsed time at from five to eight minutes.

It further appears from the record that the sheriff was not sworn as a bailiff, and was not in any manner in charge of the jury, which was in the custody of two bailiffs duly sworn for that purpose.

The weight of authority with reference to the effect of the unauthorized separation of a jury in a criminal case, other than misdemeanor, after submission and before agreement, is stated in a careful case note in 34 ALR p. 1115, at page 1215, in the following language:

“In a prosecution for a felony, the courts, generally are agreed that where the jury has separated while deliberating on their verdict, under such circumstances as to make it reasonably appear that they might have been tampered with, prejudice is presumed, and the burden of showing that the defendant was not, in fact, prejudiced thereby, is on the prosecution. Unless the state shows noninjury to the defendant, a new trial will be ordered.”

The rule in this state was established by the case of State v. Church (1895) 153, as follows:

“We believe the true and only safe rule to be that, where the separation is such that one or more of the jurors might have been improperly influenced by others, and there is nothing reliable to show that such influence has not been exercised to the prejudice of the accused, the verdict shall be vacated, and the case be retried.”

We think the rule announced in State v. Church is not substantially different from the general rule as above set out. The importance of preserving the purity of jury trials and guarding them from all improper influence has been several times emphasized by this court. See Peterson v. Siglinger, 52 N.W. 1060; State v. Ferguson, 204 N.W. 652.

The sheriff in the instant case was one of the witnesses for the state. He was not a bailiff, and his official capacity as sheriff certainly gave him no right or authority to mingle in any fashion with the jurors or to have anything whatever to do with them. The separation of the jury is conceded, and that the juror Schnoose and the sheriff were together and apart from the other jurors for a period variously estimated as from four to fifteen minutes is not questioned. The impropriety of such conduct is beyond doubt. As to what took place between the sheriff and the juror during that interval there is a square conflict. If the affidavits of appellant and Dorman are to be believed, there arises a grave suspicion that the case was discussed by the sheriff and juror. Opposed to these affidavits are the affidavits of Schnoose and Morris. Certainly if this case had been discussed between them, both must have realized the utter wrongfulness of such conduct, and it may very well be that both would hesitate to admit it. This is not a case where we have the mere fact of separation under circumstances not suspicious coupled with an affirmative showing on the part of the persons involved that there was no tampering whatever with the juror. The showing of appellant which establishes the separation goes further, and makes allegations as to facts occurring during the separation which, if believed, are extremely suspicious. The only counter showing is by the parties directly involved. Under these circumstances, and in view of this direct conflict, can it be said in this case that the state has successfully met the burden of showing affirmatively that the defendant was not in fact prejudiced by the separation? Or, in the words of State v. Church, is it sufficiently and reliably shown by the state that an improper influence has not been exercised to the prejudice of appellant?

All things considered, we do not believe that the state has sufficiently met the burden resting upon it under the facts of ...