State v. Squirrel Coat

• Court: South Dakota Supreme Court
• Writing for the Court: McCOY, J
• Citation: State v. Squirrel Coat, 32 S.D. 569, 143 N.W. 958 (S.D. 1913)
• Decision Date: 18 November 1913
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GROVER SQUIRREL COAT, Defendant and appellant.

32 S.D. 569, 143 N.W. 958 (1913)

STATE OF SOUTH DAKOTA,

Plaintiff and respondent,

v. GROVER SQUIRREL COAT,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Tripp County, SD

Hon. William Williamson, Judge

Affirmed

Doherty & Talbott, W. J. Hooper

Attorneys for Appellant.

Royal C. Johnson, Attorney General

M. Harry O'Brien, Assistant Attorney General

A. J. Wilcox, State's Attorney

Attorneys for Respondent.

Opinion filed Nov. 18, 1913; Rehearing denied Feb. 7, 1914

McCOY, J.

Defendant was convicted of grand larceny in having stolen a certain steer from one Aldworth. Defendant appeals, and urges reversal of judgment upon two grounds.

Complaining witness, Aldworth, among other things, testified that the next day after he missed the steer alleged to have been stolen he found the hide thereof in a certain butcher shop, and ascertained that defendant and two other persons had disposed of said hide; that on the second day after the missing of said steer he met and had a conversation with defendant, and that he said to defendant, "You stole that steer;" and defendant answered, "Was it your steer?" and on being informed that it was, defendant then said, "I will show you who I got it from." Defendant denied stealing said steer, but admitted that he butchered it and sold the hide, but contended that the steer was raised by him.

Defendant called as a witness one Thigh, who testified that on the second day after the alleged theft he met and had a conversation with complaining witness, who charged him, Thigh, with having stolen said steer. On cross-examination, without objection, Thigh was asked, "Did you tell Aldworth when you had this conversation with him that you saw Squirrel Coat and his boy driving this steer over the hill, and that Squirrel Coat told you that he got it from a white man for hay?" Thigh answered, "No." On rebuttal the state recalled the complaining witness, who stated that he did have a conversation with Thigh at said time, and the state's counsel then asked, "Please state what that conversation was." To which question defendant objected, for the reason that the same is incompetent, irrelevant, and not proper rebuttal testimony. The objection was overruled, defendant excepted, and now urges such ruling as error. We are of the opinion that the court ruled correctly. At least there is nothing before this court on appeal to indicate that the trial court erred. The presumption on appeal is that the judgment appealed from is without prejudicial error, and the burden is upon appellant to affirmatively show, by means of the statement in his brief, that there is prejudicial error. 3 Cyc. 275. The contention of appellant is that this was impeachment or rebuttal upon an immaterial question. It will be observed that no objection was made to the form of the question. The objection was to the entire question as a whole. The only objection urged is that it was not proper rebuttal. If the question was proper rebuttal for any purpose, the objection thereto was properly overruled. 3 Cyc. 300. Defendant evidently brought out this conversation with Thigh for the purpose of casting some discredit upon the statements of complaining witness concerning the conversation he claimed to have had with defendant. The state...