State v. Violett, 9872

• Decision Date: 07 November 1961
• Docket Number: No. 9872,9872
• Citation: 111 N.W.2d 598,79 S.D. 292
• Parties: STATE of South Dakota, Plaintiff-Respondent, v. Robert Allen VIOLETT, Defendant-Appellant.
• Court: South Dakota Supreme Court

Page 598

111 N.W.2d 598

79 S.D. 292

STATE of South Dakota, Plaintiff-Respondent, v. Robert Allen VIOLETT, Defendant-Appellant.

No. 9872.

Supreme Court of South Dakota.

Nov. 7, 1961.

W. A. McCullen, Joseph M. Butler, Rapid City, for defendant-appellant.

A. C. Miller, Atty. Gen., Robert D. Hofer, Asst. Atty. Gen., James Wilson, State's Atty., Rapid City, for plaintiff-respondent.

ROBERTS, Judge.

Defendant was found guilty by a jury on October 26, 1959, of manslaughter in the first degree. By a judgment entered November 4, 1959, he was sentenced by the court.

A preliminary hearing was held July 21, 1954. Defendant was represented by court appointed counsel. He was bound over for trial to the circuit court. An information filed by the state's attorney on November 2, 1954, contains two counts. In substance the first count charges that defendant on the 12th day of June, 1954, on the Shull ranch in Pennington County, did wilfully and unlawfully with malice aforethought shoot and mortally wound Richard Deutscher and inflicted upon said person mortal wounds from which he died. Count two of the information charges that the mortal wound of which Richard Deutscher died was inflicted by a bullet from a .22 caliber rifle discharged by defendant, without any design to effect death, while defendant was engaged in committing the crime of robbery.

The state's attorney prior to the filing of the information and arraignment in circuit court requested the appointment of experts to inquire into the sanity of the defendant. The superintendent of the Yankton State Hospital and two physicians on the staff of that institution were appointed to examine defendant. Their written report, filed with the Clerk of Courts of Pennington County on November 2, 1954, stated in part: 'Staff unanimously agreed upon a diagnosis of schizophrenic reaction, catatonic type. We are certain that this condition not only exists now but existed at the time of the crime. We are also certain this individual has been actively schizophrenic for a year or two. In fact, he can be said to have been slowly slipping into schizophrenia most of his life.'

On November 15, 1954, the circuit court conducted a hearing and testimony was taken before a jury impaneled to determine whether or not defendant was sufficiently sane to stand trial. The court at the conclusion of the hearing entered the following order: 'The jury having by its verdict found that the defendant is not of sufficient sanity to now be held for trial, and it appearing to the satisfaction of the court that it may be dangerous to the public health and safety to release or discharge the defendant during the time of his present mental condition and insanity, it is the order of the court that Robert Allen Violett be committed to the State Hospital for the Insane at Yankton, South Dakota, until such time as the defendant becomes sane, at which time the Superintendent of the State Hospital for the Insane shall forthwith place the defendant in the custody of the sheriff of Pennington County, South Dakota, to be by them held for trial on the charge in the information filed against him.'

The defendant was confined in the Yankton State Hospital until September, 1959. Counsel for defendant moved dismissal of the information and discharge of the defendant on the ground that he had been deprived of his right to a speedy trial. The motion was overruled and on October 19, 1959, the case proceeded to trial before a jury. The record shows that defendant on being arraigned stood mute, and the court then entered a plea of not guilty for him and also a plea of not guilty by reason of insanity.

A review of the record shows that defendant arrived in the town of Wasta, Pennington County, in an automobile on June 9, 1954. Jack Tennyson who was employed at a sand pit about two miles from Wasta related a conversation with defendant in the afternoon of that day. The witness testified: 'Well, when he first got there he was looking for a job, he told us he ran out of gas with his car, and he was supposed to have had a job in Yellowstone Park. He had just about enough money to make it there, and he had been messing around in the Bad Lands, never been through there before, he lost his billfold, he got as far as Wasta, wanted to get a job, make enough money to get on out to Yellowstone. He asked us if there was any openings there, and we told him we didn't know, that he would have to wait and see the foreman, so when the foreman came back there was no opening. He had said that they in town had told him that he probably could get a job at the Roy Shull ranch, and he knew the general direction, he was going to wade the river and go on into the ranch.'

Defendant then proceeded in the direction of the Shull ranch and on the way met Lawrence Kalkbrenner who was working in a field. Mr. Kalkbrenner testified: 'This man walked up, he was walking, he was going south, and as I stopped to see if there was something he wanted, he asked me if he was on Roy Shull's ranch. I told him that he wasn't quite there yet, and he asked me how to get there, so I pointed out the place, and then made a statement that he was dry, about had'nt had a drink for awhile, asked me if I had any water. I said I didn't, didn't take any along that day. I suggested he sit down and rest and smoke a cigarette. He said he didn't have any cigarettes, so I give him mine, what I had, and then he asked if what I had in the radiator, if I could give him a drink, what I had in the radiator. I told him I thought he would get sick. He then asked what I had in the tires. I again told him he would get sick if he drank that.'

Richard Deutscher, wife and three children resided on the Shull ranch. He was the son-in-law of Roy Shull whose home was in Wall, a distance of ten miles from the ranch. When Mr. Shull arrived the evening of June 9 at the ranch, the defendant identified himself as Joe Finch and said that he was without a place to eat or sleep and asked if he could work on the ranch. The Deutscher family at the time had gone to Sturgis. That night defendant stayed at the Shull home in Wall and the following morning, Thursday, returned with Mr. Shull to the ranch. Defendant likewise returned with Mr. Shull to the ranch the following Friday and Saturday mornings. It appears that deceased, Richard Deutscher, in the afternoon of the day of the shooting, was in the basement of his home repairing a water pump. Mrs. Deutscher was in the kitchen and within hearing distance. She testified: 'Mr. Violett asked Richard if he wasn't done yet * * * and I then heard Richard answer him and say, 'No, it's going to take a long time' * * * Well, the next thing I heard was a loud noise, * * * I * * * went to the basement. When I stepped off the foot of the stairs I saw my husband lying on his face. Mr. Violett was standing back to one side of the stairs with a gun on me. * * * I asked him why, he said my husband wouldn't give him any money. * * * He asked me for the keys to the Mercury * * * I told him I didn't have the keys.' She further testified that defendant then searched the body, found and took the keys and deceased's billfold. Statements made by defendant following his arrest were to the effect that the shooting was accidental, but otherwise are in substantial agreement with the testimony of the wife as to what occurred at the time.

Errors are assigned to the effect (1) that defendant was denied his right to a speedy trial; (2) that the court should have conducted another sanity hearing before commencement of the trial; (3) that the court erred in discharging one of the regularly impaneled jurors and substituting an alternate juror; (4) that the court should have declared a mistrial because of the emotional displays of certain witnesses; (5) that the court erred in failing to instruct on the burden of proving sanity; and (6) that the evidence was not sufficient to justify the jury in concluding that defendant was sane at the time of the commission of the alleged offense, that the killing was perpetrated in the heat of passion with premeditated design and that the killing was perpetrated while defendant was engaged in the commission of a felony.

Defendant contends that his constitutional and statutory right to a speedy trial was violated. This contention is based upon Section 7, Art. VI of the Constitution of this state guaranteeing to an accused the right 'to a speedy public trial,' and the same provision contained in SDC 1960 Supp. 34.2905. The term 'speedy trial' as used therein is not precise or definite. Whether such a trial is afforded must be determined in the light of the circumstances of each particular case. State v. Werner, S.D., 105 N.W.2d 668. The lapse of time is not the only factor to be considered. It is sometimes said that a speedy trial means a trial regulated by fixed rules of law and that delay created by operation of those rules is not included in the meaning of the constitutional provisions. Accordingly, this court has held that the state is entitled to a reasonable time in which to secure the attendance of witnesses. State v. Pratt, 20 S.D. 440, 107 N.W. 538, 11 Ann.Cas. 1049. The right should not operate to deprive the state of a reasonable opportunity of fairly prosecuting criminal actions. The court in Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 576, 49 L.Ed. 950, said: 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.'

In State v. Lamphere, 20 S.D. 98, 104 N.W. 1038, 1040, it was claimed that the trial court erred in denying a motion to dismiss an indictment on the ground of unreasonable delay. The accused at no time resisted the several continuances of his case resulting from adjournment of terms of demanded a trial. This court said: 'The Bill of Rights provides that in all criminal...