State v. Yokum

• Decision Date: 16 June 1899
• Citation: 11 S.D. 544,79 N.W. 835
• Parties: STATE OF SOUTH DAKOTA Defendant in error, v. WILLIAM D. YOKUM, Plaintiff in error.
• Court: South Dakota Supreme Court

11 S.D. 544

79 N.W. 835

STATE OF SOUTH DAKOTA Defendant in error,

v.

WILLIAM D. YOKUM, Plaintiff in error. Joseph B. Moore, Jay I. Woolston, and Horner & Stewart Attorneys for plaintiff in error. John L. Pyle, attorney general T. W. La Fleiche, states’ attorney, Butte county Attorneys for the defendant in error. Opinion filed June 16, 1899

CORSON, P. J.

Wm. D. Yokum, plaintiff in error, was indicted, tried, and convicted of the crime of murder, and sentenced to imprisonment in the states’ prison for the term of his natural life. He brings the case to this court by writ of error issued to the circuit court of Butte county, and relies mainly for a reversal of the judgment of the court below upon alleged errors committed by the trial court in excluding evidence on the part of the plaintiff in error and in refusing and giving instructions to the jury. At the trial the plaintiff in error admitted the killing, and claimed that it was justifiable in defense of his person.

“Justifiable homicide” is thus defined by Section 6464, Comp. Laws: “Homicide is also justifiable when committed by any person in either of the following cases: …

(2) When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.”

Section 7402, Comp. Laws, provides as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

It appears from the evidence in this case that on the first day of September, 1896, the deceased, one James C. Barnes, was engaged, in connection with one Sebastian, in keeping a saloon in the town of Belle Fourche, and the plaintiff in error was a farmer living in that vicinity. On the afternoon of that day the plaintiff in error, whom we shall hereafter designate as the “accused” was frequently in the saloon of the deceased, and he and the deceased had several drinks together. Between 6 and 7 o’clock the deceased and accused had some words in regard to the throwing of dice (presumably for the drinks), and the accused thereupon left the saloon, and remained standing on the sidewalk near the front door. Within a few minutes thereafter the deceased stepped to the door, and what then occurred is thus stated by one George E. Hair, a witness on the part of the prosecution:

“I was living in Belle Fourche, September 1, 1896, and knew Barnes and Yokum. On September 1st I saw an altercation between them, in the evening, on the sidewalk in front of Sebastian & Barnes’ saloon. Barnes, Yokum, and several others were standing in the doorway of the saloon. Barnes, myself, and a Mr. Lowry started eastward, when Mr. Barnes turned around quick, and said, ‘Whats’ that?’ Lowry and I stopped. Barnes walked twenty or twenty-five feet from where he stopped, near where Yokum stood, and, as he walked towards Yokum, Yokum said, ‘didn’t mean that for you.’ Barnes replied, ‘thought you did.’ Yokum again said, ‘I didn’t mean that for you;’ and Barnes made some remark to the effect that language like that was generally meant when it was said, or something of that kind, and Yokum raised his hand two or three times. Barnes stood with his hands at his sides or in his pockets, I don’t know which; and suddenly I saw Yokum make a lunge with his hand, and I supposed he hit Barnes with his fist in the pit of the stomach, but when he drew his hand back I saw that it contained a knife. Barnes then raised his left hand, and either pushed or grabbed Yokum on the shoulder. In an instant Yokum struck the second blow at Barnes with the knife. It was a single-bladed pointed knife, six inches long. They clinched and struggled, and Yokum again struck at Barnes with the knife, but it went harmlessly by Barnes’ side. When Yokum struck Barnes with the knife, Barnes was standing, making no demonstration. Barnes then ran into the saloon, and Yokum ran across the street.”

Isaac Lowry testified as follows:

“I reside in Belle Fourche. Was here September 1, 1896. Knew Barnes and Yokum. I saw them and others in front of Barnes & Sebastians’ saloon that day, about 6 or half past 6 o’clock in the evening. Barnes and I started for a walk. We got probably a rod or so away from Yokum, when he made some noise with his mouth. Barnes turned around and walked back, and asked Yokum if he meant that for him. Yokum said he did not; that he meant it for some of the other fellows. They stood there looking at one another a little bit. Jim walked up to him, and then Yokum stabbed him with a knife. I saw Yokum strike Barnes twice. I don’t know what Barnes done just before he was struck, because I didn’t see he done anything. I wasn’t watching him. Barnes ran in the saloon then, and Yokum went across the street. When Barnes turned and went back towards Yokum, I heard him say to Yokum, ‘If you meant that for me, you will have to fight.’”

Other witnesses testified to substantially the same state of facts on the part of the state.

After the state had concluded its evidence in chief, one Kittie Lambertson was called as a witness on the part of the accused, and after testifying that she had been acquainted with deceased for about five years, she was asked to state the custom or habit of deceased with reference to carrying firearms. This question was objected to as incompetent, objection sustained, and exception taken. Substantially the same question was repeated in the same form, and the same objection was made, same ruling, and exception taken. Counsel for the accused contend that the court erred in excluding this evidence, and that the error is such as to entitle the accused to a reversal of the judgment in this case. We are of the opinion, however, that the court ruled correctly in excluding this evidence. Evidence of the character or reputation of the deceased, or that he was accustomed to carry firearms, is never admissible unless for the purpose of explaining, characterizing, or illustrating an assault or an attack of the deceased upon the accused at or about the time of the homicide. It will be observed that the state, in making out its case, had not introduced any evidence tending to show that the act of the accused was justifiable or excusable, or that an assault or an attack was made upon the accused. It appears, it is true, that the deceased walked 20 or 25 feet, to near where the accused stood, and remarked that language like that used by the accused was generally meant when it was said, or that it meant fight, but that Barnes stood with his hands at his sides or in his pockets when struck by the accused. Certainly, there was nothing in this evidence that could have caused any reasonable ground on the part of the accused to apprehend a design on the part of the deceased to commit a felony upon him or to do him some great personal injury. There was no act of the deceased at that time which the evidence could characterize or explain, and the evidence was properly excluded. The fact that subsequently, in the course of the trial, the accused testified to certain facts tending to show that he had some slight grounds to fear that the deceased intended to do him some great bodily in jury, cannot have the effect of making the ruling of the court erroneous when such ruling was correct at the time it was made. After the accused had testified, this witness was not recalled, nor was any evidence of a similar character offered on his part.

The accused was then called as a witness in his own behalf, and after testifying to what was said in the saloon, and as to some words he had with the deceased at the door of the saloon, testified substantially as follows:

“Barnes came out in about a minute, and said, ‘You are talking about me.’ I said, ‘No, sir; I am not.’ ‘Well,’ he says, ‘that settles it.’ I says, ‘That settles it.’ Barnes and Ike Lowry started off for a walk. A boy came along, and I made a noise with my mouth. Barnes whirled around, and said, ‘Do you mean that for me?’ I said, ‘No, sir, I didn’t; I meant it for the kid and the boys having fun over there.’ Barnes said, if you meant that for me, that means fight,’ or ‘I mean fight,’—something like that. … He came right on to me. He came up within two feet of me, and I kind of stepped hack, may be as much as a foot or such a matter; just one foot back. He had a hand kind of in his pocket, and looked me right straight in the eye. I didn’t say a word, and he didn’t say anything at that time, but he made a kind of a motion with his hand, like he was going to put it in his hip pocket; so at that time I grabbed at his arm, and jerked the knife at the same time, and stabbed him. … He was about eight or ten feet away when he made those remarks that it meant fight, and kept coming right towards me, and grabbed at me with his left hand. I thought I seen the butt end of a revolver. I wouldn’t swear positively, but I thought I seen one. When he raised his hand to his hip pocket before I grabbed at my knife, I thought I seen it, and before I jerked my knife. I pulled my knife to protect myself. I did not strike Jim Barnes with the intention or purpose of killing him. I aimed to stop him. Had no unkind word whatever, and entertained no unkind feeling towards him. Had no desire whatever to take his life, and didn’t intend to. I struck him for the purpose of stopping him from killing me or doing me bodily harm. I was afraid of him shooting me, because one time, when we was out walking, he told me. he never let a man get the best of him that way. I knew of Barnes carrying a revolver or...