State v. Swenson
| Decision Date | 06 December 1910 |
| Citation | 129 N.W. 119,26 S.D. 589 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and appellant, v. NILS P. SWENSON, Defendant and respondent. |
| Court | South Dakota Supreme Court |
One Nils Swenson, a farmer 72 years old, was convicted in the circuit court of Clay county, upon the charge of murdering Bertha Swenson, his daughter-in-law, by administering strychnine poison. Upon a proper bill of exceptions a new trial was granted the accused and from the order granting a new trial the state appeals. The motion for a new trial was based upon errors of law occurring at the trial, including errors alleged in certain portions of the charge of the trial court, and upon the ground of insufficiency of the evidence to sustain a conviction. The exceptions to the charge were stricken from the bill by the trial court on the ground that the same were not taken in time, and the order sustaining the motion for a new trial also contains a recital to the effect that the fifth ground of the motion, namely, "that the verdict is contrary to the evidence," was not passed upon or considered by the court in granting the new trial. Upon this record, it seems that the only questions considered by the trial court were those relating to alleged errors of law occurring at the trial in rulings upon the competency of evidence offered. The evidence, which is very voluminous, has been fully and carefully examined by this court, and we are convinced that the trial court exercised a wise discretion in granting the accused a new trial. The bill of exceptions upon the motion for a new trial discloses 42 distinct assignments of error, relating to rulings upon questions of evidence. We shall consider only those assignments which we deem material in determining whether the court was justified in awarding a new trial.
Charles Swenson, son of the accused and husband of the deceased, being called as witness by the state, was asked a certain question which was objected to as incompetent, irrelevant, too remote to be binding upon the defendant, and not a part of the res gestae, and no proper foundation laid, which objection was overruled and the ruling excepted to by the accused. To understand the materiality of the question presented by this assignment, it is necessary to consider the circumstances of the alleged crime as developed by the evidence on the part of the prosecution. Charles Swenson was the first witness called by the state. He had testified that at the time of the alleged crime, he, together with his wife and three children, were living in his father's house, on his, the defendant's farm, in Clay county; he and his wife being hired by the father to work on the farm. On the 7th day of July, 1909, the day on which the strychnine was alleged to have been administered to the deceased, the witness was at his brother's place, about one-half mile distant, assisting in scraping a ditch; that when the witness left home in the morning to go to his brother's place, the accused, Nils P. Swenson, went with him and remained at the brother's house until about 10 o'clock, when he went east down the road to where Soderberg, another tenant, was cultivating corn, about a half mile. He did not see his father again until he went home for dinner, about 12 o'clock. On arriving home, he put away his team and fed them and went in to dinner, and met his father, who had just finished his dinner, and was coming out of the house as the witness went in. While the witness was eating dinner, the accused came in and called for Bertha, saying something about shutting up some shoats. The deceased, whom the witness had not seen up to that time, since coming home, answered, saying, "Yes, we will shut up the shoats," and came down two or three steps on the stairway, but the witness did not see her face and only saw her feet and dress; that the accused then went away; that after finishing his dinner the witness went out to pump water and do chores about the barn, and was absent about half an hour; that he then went back to the house and went upstairs to see what Bertha was doing. The accused was not in the house when he returned after doing the chores. The witness was intending to go to the field to cultivate corn, but wanted to speak to the deceased before going away, and went upstairs and saw her lying behind the chimney on her back, on a box of cloths. He spoke to her, but she did not answer. She was breathing hard like she was sleeping; her hands were hanging down and her feet were on the floor. When she did not answer the witness took hold of her and raised her up. She started to vomit and vomited quite a little, but did not say a word. She was just like she was dead only she was breathing. He could see she had fainted. Witness then carried her downstairs and laid her on the bed. No one else was then in the room. Shortly after, she came to and said she was awfully sick. The witness got her some water and she drank it later. She asked for water several times.
This was about 2 o'clock in the afternoon. Witness stayed there all day except going off from her a little. The witness thought all afternoon until around 7 o'clock or so, that she was getting better. About two or half past two o'clock, the deceased wanted her husband to get a doctor. He did not say anything in reply at that time. The accused came to the house and the witness told him Bertha was sick. "She wants me to get a doctor." In reply the accused said, "Oh, pshaw, she is just on a spree, on a drunk; she is just drunk." The witness further testified that a week or two previous, the accused and the deceased, Bertha, had sent away and obtained about four gallons of whisky, which was received on the Friday before, and deceased had been drinking; that when the accused told the witness that Bertha was just drunk, Bertha did not answer anything. Accused remained in the room for a short time and then went out. The witness testified that a while after this, his wife again asked him to go for a doctor. He thereupon went to a neighbor's, Carlson's, about a half mile away, and telephoned to Beresford for a doctor and came back home. When he returned, the accused was in the yard. The deceased seemed to be about the same when he came back. She was still and quiet. He did not speak to his wife very much; didn't think she was very sick. She did not say anything further in regard to how she felt. From the time he returned from Carlson's the witness was in the house until Dr. Elliott came, about 6 o'clock that evening; that he met the doctor just outside the door and told him to go in and see what was the matter with Bertha, and the witness went in with him afterwards. The accused was then in the house. The doctor took the temperature of the patient, felt her pulse, and sat down by the bed. They were talking about Bertha's drinking and about her having been over to Soderberg's and Carlson's on Monday, and the deceased then said, "Oh, shut up; that she did not like that." The witness described to Dr. Elliott the condition in which he found his wife and that he carried her downstairs. The doctor was there only about 15 or 20 minutes. The witness was then asked: This question was objected to as incompetent, immaterial, and irrelevant, too remote to be binding upon the defendant, not a part of the res gestae, and no proper foundation laid for it, that such evidence would not be in any way binding upon the defendant, as it could not be anything else but a statement of a transaction that had previously transpired. Objection overruled and defendant excepted. The witness thereupon answered: "Well, she says that Swenson, or father, had given her a drink the night before that made her sick and she kept getting worse and worse." This ruling is assigned as error. The witness testified that the father was present and heard this statement. The question was asked the witness: The witness testified that he did the chores just after Dr. Elliott left, which took less than an hour and a half; that the accused was in the house when he was doing the chores and was there when he returned to the house; that all of the children were in the house; that Dr. Elliott left some pills with the accused for Bertha, which the accused gave to the witness with directions that one be given every two hours; that about 8 o'clock, the witness put one into her mouth; that the accused went to the bed where Bertha was lying and took a quart bottle containing a little whisky from under her pillow and offered the witness some to drink. Witness took the bottle and tasted it, and it was whisky; that the accused said Bertha had stolen the bottle out of the shanty and hid it there herself. Accused then went upstairs and got two more quart bottles of whisky out of the box where Bertha had been lying. The witness testified that about one-half hour after Dr. Elliott left, the deceased had "one of those shaking spells and said, 'Hold me,' and laid still five or ten minutes, perfectly still." The witness testified that a little after 8 o'clock he went to telephone for the doctor a second time, but that the deceased did not asked him to go for the doctor; that the deceased had a good many shaking spells, but that they were getting kind of slower before he went for the doctor the second time; that when she had those spells her body was kind of stiff and stretched out, her feet stretched out and hands too, and her head thrown back...
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