Territory v. King

Decision Date28 February 1889
Citation6 Dak. 131,50 N.W. 623
PartiesTerritory v. King.
CourtSouth Dakota Supreme Court

OPINION TEXT STARTS HERE

Error to district court, Beadle county; James Spencer, Judge.

Benjamin King was convicted on an indictment for an assault on one Edwards with a sharp and dangerous weapon, with intent to do great bodily harm, and, a new trial being denied, he brings error. Affirmed.

Defendant interposed a special plea to the indictment, alleging that he had already been convicted by the jury of the offense charged in this indictment, to-wit, on the 13th day of April, A. D. 1887, and thereafter discharged and acquitted by the judgment of the court herein on, to-wit, May 2, 1887.” A demurrer to the plea was sustained. After the jury had been out 28 hours, the court gave them further instructions, and, among other things, said to them: “I think you will be able to arrive at a verdict in this case. The case has been twice tried, at a great deal of expense to this county, and it seems to me, gentlemen, that you ought to agree on a verdict.” Code Crim. Proc. Dak. § 343, provides that “the trial must proceed in the following order: (1) If the indictment is for a felony, the clerk or district attorney must read it, and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.” The indictment was not formally read to the jury, but it appeared that the prosecuting attorney, in impaneling the jury, stated to each member thereof the nature and circumstances of the offense charged, the name of defendant, and the person on whom the assault was made; that, after the jury had been impaneled and sworn, he stated to them in substance the allegations of the indictment, and that defendant had entered a plea of not guilty thereto; and he then stated in detail the substance of the facts he intended to prove. After the case was submitted to the jury, but before they retired to the jury-room, they were given a recess of five minutes, and separated for that time; and one of the jurors, on account of lameness, was left alone in the jury-room, but with the door locked, while the others, under the charge of the bailiff, went to the hotel for their meals. From an examination by the court of the jurors, and from an affidavit of the bailiff, it appeared that during such times they had no conversations with any one relative to the case, and heard no remarks in regard to it. Defendant, in moving for a new trial, presented affidavits of...

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28 cases
  • State v. Levy
    • United States
    • Idaho Supreme Court
    • January 21, 1904
    ... ... 912.) ... In a criminal case a new trial will be granted when the ... evidence preponderates against the verdict. ( Territory v ... Reuss, 5 Mont. 605, 5 P. 885; Leake v. State, ... 29 Tenn. (10 Humph.) 144.) "A new trial will be granted ... where a conviction is had ... Bemmerly, 98 Cal. 299, 33 P. 263; People v ... Bush, 68 Cal. 623, 10 P. 169; Key v. State, 28 ... Ark. 155; Territory v. King, 6 Dak. 131, 50 N.W ... 623; Territory v. Hart, 7 Mont. 489, 17 P. 718.) ... SULLIVAN, ... C. J., STOCKSLAGER, J. Stockslager, J., ... ...
  • State v. Kent
    • United States
    • North Dakota Supreme Court
    • June 5, 1896
    ... ... 525; Elliott v. State, 51 N.W. 315; Thomp. on ... Trials, 652, 653. The point of objection to this line of ... cross-examination in Territory v. O'Hare, 1 N.D ... 30, (44 N.W. 1003,) was that "the state cannot inquire ... into defendants history or attack his character unless the ... Greenleaf ... Ev. § 459; Whart. Cr. Ev. § 472; Carroll v ... State, 24 S.W. 100; Holder v. State, 25 S.W ... 279; Turner v. King, 32 S.W. 941. A defendant cannot ... be asked if he has been indicted for the purpose of ... impeaching him. Van Bokkelen v. Berdell, 130 N.Y ... ...
  • State v. Barry
    • United States
    • North Dakota Supreme Court
    • May 31, 1905
    ... ... Iowa 288; State v. Tatman, 59 Iowa 471, 13 N.W. 632; ... Josephine v. State, 39 Miss. 613; Teat v ... State, 53 Miss. 439; King v. People, 5 Hun ... 297; Com. v. Cook, supra; Com. v. Fitzpatrick, supra; ... Hilands v. Com., 1 Cent. Rep. 899, 56 Am. Rep. 235; ... the special pleas and then proceed to the merits. People ... v. Briggs, 1 Ter. R. 293; Territory v. King, 6 ... Dak. 131, 50 N.W. 623; People v. Connor, 36 N.E ... 807; State v. Hudkins, 13 S.E. 367 ...          YOUNG, ... J ... ...
  • State v. Wilson, 12944
    • United States
    • South Dakota Supreme Court
    • November 20, 1980
    ...the record is far from clear, it appears the information was not read to the jury as required by SDCL 23A-24-2(1). Territory v. King, 6 Dak. 131, 50 N.W. 623 (1889), was an instance of complete failure of the state to have the indictment and plea read to the jury. The failure was in violati......
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