Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-03-21
CARL JONAH HANSON
The Opinion OF Judge shannon By whiel
a Man Convicted OF Murder IL
rante . New Trial.

49, ssNo SVuIS ia Auu 1OI 1duklOu
County, at the November Term, 1873.
Indictment for murder and on 9th day
of November, 1878, verdict of guilty.
MOTION FORA NEW TRIAL.
Opinion of the court by Shannon, J..
1t is important to remark that whilst the
trial Of this case occupied about FIVE days,
yet there vas no exception taken to any of
the rulings of the court in regard to the re.
lection or admission of evidence /; nor was
there any exception taken or any fault found
to the charge of the court to the Jury.
1t was candidly conceded, by the able
counsel for the defense, that the law govern
ing the case was correctly laid down to the
jury.
But the defendant, through his counsel,
demands that the verdict be set aside, and q
new trial be granted, alleging three grounds
therefor:
First. Because the district attorney, in
his argument to the jury commented upon
matters outside the record, calculated to
prejudice their verdict against the defend
ant, etc.;
Second. Because of alleged misconduct
of the jury;
1ulEus DeCIuSG lIle ScTulCI Is COUlTdTy
to the evidence.
With regard to the first point, the district
attorney, after the close Of the testimony,
and in his argument to the jury. made use
of the following language, to-wit:
If the defendant is innocent, why is he
not placed upon the stand as a witness?
"the ruling of this court, he is a competent
q witness IF Wo.o mn trio1 onN vpao spro-
"cent, l would take the witness stand, and l
" guess you would, gentlemen of the jury"
1t is also admitted, apart from the above
language, that the district attorney used
other language in that connection in argu-
ing to the jury that the defendant was prob
ably guilty, from the fact that lie had not
offered himself as q witness in his own be-
half.
Also, that the judge was busy at the time
preparing his charge to the jury, and prob
ably did not hear this language until defend.
ants counsel objected to the course of argu.
ment,-when the court read to the Jury and
informed them what the law was upon the
F subject. So far, the admissions candldly go.
The act of congress, in force at the time
is as follows:
"That in the trial OF all indictments, in.
" formations, complaints, and other proceed
" ings against persons charged with the com.
" mission of crimes, ofenses and misdemean'
" ors, In the United States courts, territorial
90 courts, and courts martial and courts OF
" inquiry, in any state or territory, inclu'
" ding the District Of Columbia, the person
$50 charged, shall, at his own request, bul
!" not otherwise, be q competent witness
And his failure to make such request shall
" not create any presumption against him.
[Approved March Is, 1881
1t is a constitutional shield and RICH,
that no person shall be compelled, in any
criminal case, to be a witness against him.
self; nor shall he be deprived OF life, liber
ty or property, without due process OF law
A party criminally accused must have a
fair and impartial trial; and such trial must
land. 1t must not be conducted III viola
ton Of law. BY the statute above quoted,
this defendant might at his own request
have become a competent witness. But lie
did not make such request; and the law de-
clares that his failure TO make the request
shall not create any presumption against
him.
These imperative words amount to an
absolute prohibition and, by necessary
implication, 1t is a violation of the law for
the prosecuting officer to argue to the Jury
the accused's guilt when he declines 10
make such request, or to avail himself of
The statutory privilege.
On the one band the law declares tina,
his failure to make such request, or to take
the witness stand, shall not create any pre-
sumption against him. On the other hand
the prosecuting officer disregarding the
law, add tossing it aside, argues to the Jury
the presumption of guilt in a most pointed
and torcibie manner.
In q criminal prosecution supported en-
tirely (let us suppose) by mere circumstan.
tial evidence, and where the accused does
not choose to become a witness in his W
behalf. the danger Of such mode of arsu-
ment by the prosecuting officer would be
incalculable. Certainly such proceeding,
ifitwould not actually prejudice the accused,
would at the very least tend to his preju-
dice In respect to a substantial right.
have carefully examined the case Of the
SIS; also the following cases: People '.
Tyler, 33 Cal. 522; Com. v. Harlow 10
Mass. Ali; Com. v. Scott, 1873 Mass. 239
Crandall '. The People, 2 Lansing 300 ;
Carne Y. Lichfield, 2 Mich. $40; Knowles
v. People Is Mich. 40S; Rulof v. People
45 N. Y. 2l3; Brandon Y. People AZ N. Y.
265; Connors v. People SO N. Y. 24O;
Slower v. People So N. Y. 315; See also
Cooley IN Const Lin. Sd Edition, 3l6,-
Also 4th Ed;3 VIII. CT. Law 301O.
And from all this examination and upon
consideration of all the admitted facts, as
we'll as from my re%collections of what
%transpired after objection made, l have
come to the conclusion that the verdict
should be Get aside and q new trial granted,
for this cause alone.
By legislative enactment the charge TO
the jury is required to be in writing, and
must be sent out with the jury for their ex-
animation if need be. In that final written
charge nothing was stated in reference to
what had transpired In the argument of the
district attorney before the jury; nor was
the court requested by defendants counsel
to charge thereupon. The act of con-
gress above referred to has introduced a
new element Tito our code of criminal pro-
cedure and prohibiting IS it does such ar
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