State v. Weckert

• Decision Date: 01 July 1903
• Citation: 95 N.W. 924,17 S.D. 202
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. JOSEPH WECKERT, Plaintiff in error.
• Court: South Dakota Supreme Court

17 S.D. 202

95 N.W. 924

STATE OF SOUTH DAKOTA, Defendant in error,

v.

JOSEPH WECKERT, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Butte County, SD Hon. W. G. Rice, Judge Reversed Jay I. Woolston and McLaughlin & McLaughlin Attorneys for plaintiff in error. Philo Hall, Attorney General T. W. LaFleiche, States Attorney E. O. Farnham Attorneys for State. Opinion filed July 1, 1903

CORSON, J.

Plaintiff in error was indicted, tried, and convicted of the crime of grand larceny. Motion for a new trial was made and denied, and the case is now before us on writ of error.

It is charged in the indictment that the accused willfully. unlawfully, feloniously, and by fraud and stealth, did take, steal, and drive away a certain dark bay gelding horse about four years old, branded S (commonly called a “Dutch D") on the left hip, of the value of $50, said horse then and there being the property of John S. Scheaffer, with intent to deprive him thereof. The evidence disclosed that in the spring of 1902, at a horse round-up near the town of Belle Fourche, in the county of Butte, there was one young horse upon which no visible brand appeared. This horse was claimed by the accused, taken by him from the corral, and branded with his brand. Subsequently the horse was claimed by its true owner, Mr. Scheaffer, and upon close inspection his brand was found upon the same, and the horse was delivered by the accused to Scheaffer. Thereupon the accused was arrested, and subsequently tried and convicted, as above stated.

At the close of the trial the court instructed the jury as follows:

“In this case I charge you, as a matter of law, that if you are satisfied from the evidence that this defendant, Joseph Weckert, took the property in question from the corral … under an honest belief of ownership, although mistaken in this belief, then you would not be warranted in convicting this defendant, and it would be your duty as jurors to acquit him. In other words, where a defendant charged with larceny tells the jury, or where the jury become satisfied from the evidence, that the original taking of the property was under an honest or mistaken claim of right to the property, it is the duty of the jury to acquit him, and before you can convict the defendant in this case, the state must satisfy you from the evidence, beyond a reasonable doubt, that the defendant, by fraud or stealth, and with intent to deprive the owner of the property thereof, and knowing the same not to be his, took the property in the manner and form charged in this indictment.”

The accused contends that by this charge the court clearly instructed the jury that the burden was upon the accused of satisfying them that the taking of the horse by him was under the honest claim of ownership. We are of the opinion that the contention of counsel for the accused is correct. While it is true that in the latter part of the instruction the court does charge the jury that, before they can convict the defendant, the state must satisfy them of his guilt beyond a reasonable doubt, yet the former part of the instruction was not withdrawn from the jury, in which they were clearly instructed, in effect, that the burden was upon the accused to satisfy them that he took the property in question under an honest belief of ownership, although mistaken in that belief. This instruction was clearly erroneous, and in conflict with the provisions of section 7376. Comp. Laws 1887, which reads as follows:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

And the law upon the subject is stated in the American &...