State v. Smith

• Decision Date: 19 May 1896
• Citation: 67 N.W. 619,8 S.D. 547
• Parties: STATE v. SMITH et al.
• Court: South Dakota Supreme Court

67 N.W. 619

8 S.D. 547

STATE v. SMITH et al.

Supreme Court of South Dakota

May 19, 1896

Error to circuit court, Moody county; Joseph W. Jones, Judge.

James Smith and others were indicted for robbery. Smith, having been granted a separate trial, was convicted, and brings error. Affirmed.

R Brennan (Joe Kirby, of counsel), for plaintiff in error. Coe I. Crawford, Atty. Gen., and John Q. Adams, State's Atty (Frank R. Aikens of counsel), for the State.

HANEY J.

Defendant James Smith, having been granted a separate trial, was convicted of robbery, and sentenced to imprisonment in the penitentiary. He brings this action here for review upon writ of error.

It is contended by plaintiff in error that the evidence does not sustain the verdict, for the reason that the locus delicti has not been proven. This is not tenable. An examination of the entire record clearly discloses that the crime was committed in Moody county, in this state,--the county alleged in the information, and in which the action was tried. We think a fair and reasonable construction of all the evidence leaves no room for doubt upon this point.

The state called, as a witness in its behalf, Clyde Kephart, one of the persons included in the information in this action and as to whom the case was pending on a plea of not guilty. He was permitted, against defendant's objection, to testify fully concerning the commission of the alleged crime, and his participation therein. Defendant contends that it was error to permit this witness to testify before the court had directed him to be discharged from the information. Whether or not the court erred in this respect depends upon the effect to be given the several legislative enactments upon the subject in this state. In the Code of Civil Procedure adopted in 1877, it was provided that "no person offered as a witness in any action or special proceeding, in any court or before any officer, or person having authority to examine witnesses or hear evidence, shall be excluded or excused, by reason of such persons' interest in the event of the action or special proceeding; or because such person is a party thereto; or because such person is a husband or wife of a party thereto, or of any person in whose behalf such action or special proceeding is brought, prosecuted, opposed or defended,"--with certain specified exceptions, which have no bearing upon the questions involved in this action. Comp. Laws, § 5260, Code Civ. Proc. § 446. By this sweeping enactment, all persons are competent witnesses, unless shown to be within the statutory exceptions, and the reason for many rules of the common law based upon the incompetency of parties has ceased to exist. However, the learned commissioners who prepared the Codes of 1877, inadvertently, it would seem, retained certain principles of the common law, apparently inconsistent with the general doctrine as declared in the section above quoted. These are found in the Code of Criminal Procedure, and are as follows:

"Sec. 352. Discharge of Defendant as Witness. When two or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the territory.

Sec. 353. Same--Duty of Court. When two or more persons are included in the same indictment, and the court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed in order that he may be a witness for his codefendant, submit its said opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid." Same sections, Comp. Laws, §§ 7379, 7380.

It was provided by the general repealing act of February, 1877, that for the purposes of construction the several Codes adopted at that session of the legislature "shall be held and deemed to have been passed on the same day and as parts of the same statute, and if the provisions of any Code conflict with or contravene the provisions of any other Code, the provisions of such Code must prevail as to all matters and questions arising thereunder out of the same subject matter." Rev. Codes 1877, p. 900. Therefore sections 352 and 353 of the Code of Criminal Procedure must prevail over section 446 of the Code of Civil Procedure, and determine the practice in criminal actions, unless the former sections have been repealed or modified by subsequent legislation. In 1879 the following, found in the Compiled Laws as section 7381 was enacted: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of any crime, offenses,...