State v. Vierck

• Decision Date: 05 May 1909
• Citation: 23 S.D. 166,120 N.W. 1098
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. H. J. VIERCK, Defendant and appellant.
• Court: South Dakota Supreme Court

23 S.D. 166, 120 N.W. 1098 (1909)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v H. J. VIERCK,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Brule County, SD

Hon. Frank B. Smith, Judge

Affirmed

George G. Yeoman

Attorneys for appellant.

S. W. Clark, Atty. Gen.

Cloyd D. Sterling, Asst. Atty. Gen.

T. E. House, Stake’s Atty.

Attorneys for the State.

Opinion filed, May 5, 1909.

SMITH, J.

The defendant was convicted of the crime of burglary in the third degree, in breaking and entering in the nighttime a certain saloon building occupied by one Frank Simons, with intent to steal the goods, chattels, and property of the said Frank Simons then and there being. Defendant brings the case to this court for review upon alleged errors occurring at the trial. There are 28 assignments of error, but these are grouped and discussed by defendant’s counsel under four heads and may be considered by the court in the same order.

It is contended, first, that the court erred in overruling a motion to direct a verdict for defendant at the close of the state’s evidence. The specific assignment is that “there is an entire lack of evidence showing any breaking or entering, which is the gist of the action.” Briefly stated, the evidence at the trial disclosed: That the building was used as a saloon, of which one Frank Simons was the proprietor. That a short time before the alleged burglary the owner of the adjoining premises, in making repairs, had removed a portion of his building, leaving exposed part of the basement of the saloon building. Through this basement an opening had been made large enough for a man to pass through into the cellar under the saloon. The accused assisted in doing the repair work, was familiar with the premises, had sometimes tended bar in the saloon, and was seen in the saloon as late as 11 o’clock the night the burglary was committed. About two weeks previously a considerable portion of the floor of the cellar under the saloon had been spread with air-slacked lime, covering the space between the hole in the basement and the stairway leading up into the saloon. The door at the head of this stairway was always kept closed, and, some of the witnesses say, was always locked and was not used for any purpose. At the close of business the evening of November 22d, the night of the burglary, the saloon was locked up as usual. Simons, the proprietor, opened up the saloon about 5 o’clock the next morning, and on going to the cash drawer discovered that a money sack left in the drawer the night before was gone. On the trial he testified that as near as he could remember this sack contained about $40.75, consisting of two $5 gold pieces, one $10 gold piece, a $10 bill, and some silver. On discovering the loss of this money, Simons immediately notified Mr. Healy, the sheriff, informing him that he suspected the accused. The sheriff got the defendant and brought him down to the saloon about 7 o’clock that morning, and there searched him in the presence of Simons and others. Bills and silver were found on his person to the amount of $39.75, and also a gold watch concealed in one of his socks. About an hour later he was again searched by the sheriff at the jail and two $5 and one $10 gold piece was found concealed inside the lining of his vest. About 9 o’clock the same morning the sheriff examined the saloon premises and noticed what appeared to be some tracks going in and coming out of the hole in the basement. Lime was found on the cellar stairs and on the floor behind the bar. The door at the head of the cellar stairs had been disturbed and was unlocked when first discovered in the morning. On the trial the gold watch found in defendant’s possession was fully identified as one which had been kept in one of the drawers behind the bar in the saloon. Several witnesses testified to having noticed lime on defendant’s shoes at the time he was searched in the morning.

The evidence as to the breaking and entering was therefore wholly circumstantial. That a crime may be proved by circumstantial evidence is too well settled to require a citation of authority. The circumstances proved in this case point very strongly to the guilt of the accused, and, if such evidence has been submitted to the jury under proper instructions, this court would not be justified in disturbing the verdict of guilty. The court instructed the jury fully and correctly as to the law of circumstantial evidence, but one part of the charge, relating to the recent possession by accused of property alleged to have been taken from the building at the time of the burglary, was excepted to, and is assigned as error. This part of the instruction is as follows:

“Upon the question of whether or not the defendant was the person who broke and entered the building, that is a question which the jury will have to determine for themselves from all the evidence upon the trial. However, I might say to you regarding the possession of the property which is alleged to have been stolen at the time of the burglary, that when the fact that a burglary has been committed has been shown, and that property has been stolen, and the question is whether or not the defendant committed, or aided, or abetted in committing the burglary, his possession of the stolen goods at a time recently after the burglary as a circumstance for you to consider and weigh in connection with all of the other evidence in determining the guilt or innocence of the defendant. It is a circumstance tending to show the guilt of the defendant, unless the facts and circumstances proven upon the trial show that he may have come into possession of it honestly. The possession of the property, if any, and all of the other facts and circumstances as shown by the evidence, may be taken into consideration by you in determining the one fact whether or not, if you find that the building was broken and entered into, it was the defendant who did it.”

We are inclined to the view that the recent possession of stolen property whether in larceny or in burglary, and whether such possession be “explained” or “unexplained,” is a circumstance—an evidentiary fact—which may have a greater or lesser weight as...