State v. Tescher

• Decision Date: 05 April 1926
• Docket Number: 5448
• Citation: 50 S.D. 32,208 N.W. 164
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. ROLL E. TESCHER, Defendant and appellant.
• Court: South Dakota Supreme Court

50 S.D. 32

208 N.W. 164

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

ROLL E. TESCHER, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Perkins County, SD Hon. W. F. Eddy, Judge #5448--Affirmed Harry P. Atwater, Sturgis, SD P. J. Tscharner, Rapid City, SD Attorney for Appellant. Buell F. Jones, Attorney General Bernard A. Brown, Pierre, SD Attorneys for the State. Opinion filed April 5, 1926

DILLON, J.

This appeal is from a judgment upon conviction of grand larceny, and from an order denying a new trial, and also from an order denying a new trial upon the ground of newly discovered evidence.

The state's attorney of Perkins county filed an information charging defendant with the crime of grand larceny of two horses, alleging that said horses were the property of one H. E. Good. Defendant pleaded not guilty. The case was tried, and under instructions from the court the jury returned a verdict of guilty. Defendant made a motion for a new trial, which motion was denied, and the court entered judgment upon such verdict, sentencing defendant to serve a term of three years in the state penitentiary at Sioux Falls, S.D. Defendant then served a motion for a new trial upon the ground of newly discovered evidence and this motion was also overruled.

Appellant bases his appeal upon 32 assignments of error.

Assignment No. 4 alleges error in the exclusion of a certain exhibit; said exhibit being the signature of a witness to the testimony. There may have been error in such exclusion, but we fail to see wherein appellant was prejudiced thereby.

In assignment No. 5 appellant seeks to show a variance between the information and the evidence. However, after closely examining the evidence, we find that this contention is entirely without foundation.

Assignments 6, 7, 8, 9, 10, 11, 12, 13, 16. 18, 19 will be deemed to have been abandoned, since appellant has not substantially argued them in his brief.

Assignments Nos. 20 and 21 refer to the plaintiff's motion at the close of the state's case to dismiss and to direct or advise the jury to return a verdict. Assignments Nos. 26 and 27 refer to the same motions made at the close of the evidence. The rule is laid clown in State v. Drapeau, as follows:

"It is settled law of this jurisdiction that refusal of trial court to advise acquittal is not reversible error."

In appellant's arguments on these assignments he has assailed the instructions of the trial court, but has failed to set the instructions out in his brief, and they will, therefore, not be reviewed by this court. State v. Rathjin, 46 S.D. 412; State v. Devers, 32 S.D. 473; Bottum v. Kamen, 43 S.D. 498.

Assignment No. 28 presents the question of coercion of the jury. We have carefully examined the record, and fail to find that any coercion existed. State v. Price, 30 S.D. 299.

Assignment No. 29 alleges that the trial court has no authority to amend the settled record. Section 2546, R. C. 1919, provides:

"Any transcript, whether objected to or not, shall be subject to amendment by the trial judge, such amendment to be made after ten days notice to all parties."

Assignment No. 31 predicates error upon the ruling of the trial court in refusing the motion for a new trial based upon all of the alleged errors in the settled record, and for the reason that the jury arrived at a verdict by improper means. We have failed to find any prejudicial error in the record, and "the affidavits of jurymen are not acceptable to impeach the verdict, except where arrived at through an element of chance." State v. English, 41 S.D. 560.

With the exception of assignment No. 32, the remaining assignments relate to the rulings on evidence and misconduct of counsel. We have carefully examined the alleged errors, and find no prejudice in the rulings upon the evidence. The misconduct complained of was the statement of the state's attorney, in the presence of the jury, that "this witness is an unwilling witness, and I want to get the facts out." There was no attempt to correct the alleged prejudice at the time of...