State v. Staley

• Decision Date: 12 March 1929
• Docket Number: 6596.
• Citation: 223 N.W. 943,54 S.D. 552
• Parties: STATE v. STALEY.
• Court: South Dakota Supreme Court

223 N.W. 943

54 S.D. 552

STATE v. STALEY.

No. 6596.

Supreme Court of South Dakota

March 12, 1929

Appeal from Circuit Court, Haakon County; John F. Hughes, Judge.

George A. Staley was convicted of murder, and he appeals.Reversed and remanded.

Louis H. Smith and Danforth & Barron, all of Sioux Falls, for appellant.

Buell F. Jones, Atty. Gen., and Bernard A. Brown, Asst. Atty. Gen for the State.

BURCH J.

Shortly after 2 o'clock on June 29, 1926, defendant shot and killed Thomas Wasson.He was thereafter tried for murder convicted and sentenced to life imprisonment in the state penitentiary.He appeals from the judgment and an order denying a new trial.

The first question presented by the assignments of error pertains to the admissibility of evidence of the conduct of appellant following the shooting.For a proper understanding of the relevancy of such evidence, it will be necessary to first state the facts and circumstances leading up to and surrounding the homicide, and thereafter the evidence upon which the assignments are based.

Deceased and appellant were both farmers, living a few miles from Moenville, a post office situated in Haakon county.The tragedy occured near a wire fence, placed on the section line between a school section, section 16, and the section lying immediately west, section 17.There were three wires composing the fence, which was set on the section line.The section line highway, 66 feet in width, was bisected thereby so as to throw approximately 33 feet of the highway on each side of the fence.Deceased lived near the southeast corner of the northeast quarter of section 17.Appellant lived a mile east and a little north, near the northeast corner of section 16, the school section.A short distance north of Wasson's buildings there was a wire fence extending east and west, connecting with the section line fence by a gate.On the north of the quarter there was also a wire fence connecting with the section line fence without a gate.For some time (probably before the last-named fences were built though the record is silent as to this) there had been a wagon trail running along the west side of the section line fence, but for about 2 1/2 years that had been abandoned, and the trail thereafter ran along the east side of the fence.Shortly after noon on the day of the homicide, appellant left his home on horseback with his 12 year old son, both riding the same horse.Appellant took a pistol with him, which he explains was taken to kill a rabbit for his wife, who was then ill.In time he came to the gate near the home of deceased, and, instead of turning to the east of the fence and following the road on the east side, he went through the gate and followed the old trail on the west side of the section line fence.Deceased was not at home at the time, but had gone to a 40-acre tract north of the school section and on his return from the tract was coming across the school section in a southwesterly direction.Deceased and his wife were together and had a load of brush on a wagon drawn by horses.As they were coming across the school sectionthey noticed a man and boy on horseback on the west side of the fence.Thinking they were strangers, unfamiliar with the road, the Wassons turned their team towards the west, drove to the trail along the west side of the section line fence and proceeded down that road until they came opposite appellant and his son.What then happened is in dispute.Mrs. Wasson says: As she and her husband came near, they recognized appellant, and when they were opposite they stopped the team, and she spoke to appellant and said: "George, you're on the wrong side of the fence, how did you get through there?"Appellant replied: "I come through the gate up there."To which she answered: "That is all right, George, only you will have to go back the way you came as there is no gate at the north end."That deceased got out and went behind the wagon, where he stood holding onto the brush, when she turned, and saw appellant put his hand to his hip pocket.Her husband (deceased) spoke to appellant saying: "George you can't get through over north, or how are you going to get through?"To which appellant replied: "You come on, and I will show you how I will get through."She says her husband was standing back of the wagon when appellant fired the first shot; that she saw appellant pull out his gun, saw his hand shake when he fired, and the bullet went south and east toward the horses, which caused the horses to jump and plunge toward the east.Shortly thereafter, about a second according to the wife, she heard a second shot, followed in quick succession by a third.During this time she was busy controlling the team, but shortly thereafter her husband came around the wagon, climbed up beside her, and said, "Now Belle, let them go as hard as they can; he shot me in the back and I am a dead man;" after which they hurried home.

Appellant's version is that Mrs. Wasson said that appellant could not go through that way, to which he replied: "I didn't know you had changed the road to the other side of the fence."Quoting from appellant's brief, appellant's testimony is as follows: "Wasson then said I wasn't going back that way and he jumped out of the wagon and came around the wagon.I believed Wasson had a gun, and the boy got off the horse and then I did.I could see after the boy was off the horse that Wasson had a knife in his hand, so I fired the revolver to one side.I thought this would stop him but he then came on very fast right up to the fence.He stooped down to come through the fence and I fired again.He said, 'Damn you, you're not going that way,' and then I fired the shot at him.When I fired the last shot he had the knife in his right hand.We were so close together that I had to step back or he would have reached me.I believed my life was in danger when he came at me with the knife in his hand.I fired the first two shots to my right toward the team.After the third shot Wasson went back and got into the wagon.I walked on up the fence."

Deceased was hit in the back, the ball entering his body low down, a little to the right of the backbone, passing slightly upward through his body, coming out between the seventh and eighth ribs, a little to the left of the middle of his body, and lodging in his clothing, where it was found.After getting home, deceased was left alone while the wife went to summon help.During the night an attempt was made to move deceased to the hospital at Pierre, but on the road a few miles out he died in the early morning of the day following the shooting.Appellant claims that he shot in self-defense.

The evidence assigned as erroneously admitted pertains to the conduct of appellant following the shooting.It is objected to on the grounds that it does not relate to the offense charged, but to an entirely different offense.It is substantially as follows: There are three occurrences.First, an hour or more after the tragedy appellant went to the home of Leonard Grotta and there had a conversation in reference to a line fence between his land and Grotta's.During the conversation appellant insisted that Grotta would have to sell him a half interest in the fence or have trouble.Grotta testified that at that time appellant appeared to be very angry and nervous, otherwise not much different than usual.Second, about 6 o'clock, being three or four hours after the tragedy, appellant went to the home of Olie Grotta to get a plow belonging to Joe Hayes.He met Grotta in the field, and while conversing with Grotta, he, without any apparent cause shown by the record, became angry, used bad language, shook his fist in Grotta's face, and drew a gun from his pocket.Grotta said he did not want to fight and suggested they go to the house and settle the matter.The two started to the house, but after going a short distance appellant said, "Let's us drop it," and said he was sorry he put his hand in his pocket.Third, about 7:30 o'clock of the same day Joe Hayes went to appellant's home to get a drag.After getting the drag, he met appellant in the yard, and appellant demanded that Hayes settle for a steer that he claimed Hayes had stolen.He then grasped Hayes by the collar and pulled a pistol from his pocket, whereupon Hayes caught his arm and the gun was discharged.Hayes got the gun away from appellant, hit him on the head with it, threw him down, and held him.While down appellant called to his family, asking some one to get a gun and shoot Hayes.He was held by Hayes for some time, estimated to be about half an hour, until a neighbor came and tied him.Shortly thereafter the deputy sheriff appeared and arrested appellant; but the record does not show that the difficulty between Hayes and appellant was in any manner connected with his arrest.

Was the evidence admissible over the objection of defendant?If it was related to and tended to prove the crime charged it was not inadmissible simply because it also proved or tended to prove defendant guilty of another crime.Evidence tending to prove the charge cannot be excluded if otherwise competent merely because it may put defendant in a more unfavorable light by showing him guilty of another offense; but where evidence has no direct relation or tendency to establish the charge, evidence of other crimes is ordinarily not admissible.There are exceptions to that rule arising in cases where an essential element of the crime charged is not susceptible of direct proof, such as knowledge or intent, and evidence of other similar crimes tends to prove such essential element of the crime charged.

Such evidence was therefore not admissible, unless it was a part of the res gestae, or, if not a part of the res gestae, was so...