Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-20

= . trsl 10 . sst0tonl cGss must aleo GAov
hat The excluded taeiooey - netsghl
ths dsssoAa1t, 81 thAa ~ vas ee3usoA
y - exclusion. o. the jadgDsss sll ~
Disturbed.
All iniesdosnts are 10 support Of tie
udg9eat II criminal cassa, % ias = soeh
lntsodosaas srs ooesistsas viii the record.
II nay b veil Asse 70 pots the fses that
shen the indictaept charges an aocnsed
nth murder, the plea Of mot guilty permits
Ehe ds4endaot 70 give II evidence such facxs
will justly the homicids; ssch facts IN
will sxcuss the hoaicids; pchI facts - will
reduce the homicids from murder to man
daughter in the frk or ssceod degree. Inl
oshsr words the plea Of not guilty presents
four separate issues, which should b kept (
10 mind in applying The foregoing auihoii.
~ % the case under toopaidsration, ard
thus applying the authorities the following
propositions are established:
Frst-The court may not express IN
supoa questions Of fac4. 1
6econd-Qseskions Of fact of which the
jury are the exclusive judges under SECTION
377, page SOL, revised codes Of Dakota,
which are substantially the ssns a. the pe.
nal code and the constitutional pfovision Of
California, refers to such facts and such
facts only, q are contested, disputed Or
sought 70 b established BY evidences.
Third-The statute does not change the
common Law rule excspt - to diaputed Or
contested questions, Of fact.
Four rA; i within the province Of the
court, and often the duty Of the court where
separate and distinct issues are presented to
direct the attention Of the Jury to the evil
dence, that iscompetent, - tending to prove
certain specific facts or issues, and where
there is no legal evidence tending to estab.
lish . particular issue or defense it is the
duty of the court in instructinR the jury to
90 declare the Law, aud this il not an ex-
preston of opinion, upon q matter of fact,
within the meaning Of the statute above re-
ferred to.
= In the3case under consideration, there be-
ing no evidence tending to justify or excuse,
the court properly 90 declared.
The Law defines what facts will justify OF
excuse q homicide, and the court must de-
termine, ~ . legal proposition, what evil
dence is competent a. tending to establish
such facts, and the court having instructed
the jury thst there was no evidence to be
considered BY them tending to Justify or ex-
cuse.
Manifestly then the only remaining ques.
ton for the jury to determine, was as to the
grade Of the o6ense. Wa it murder, OF
we're there extenuating circumstances that
would reduce it to manslaughtsr. Thst issue
Or question was properly submitted to the
Jury. That jury was under solemn obliga.
tion to pronounce . truthful verdict in &C.
~cordance with the evidence. The court
had taken from their consideration al ques.
tons pertaining to justification or excuse
The defendant in open court, in the pres
ence Of the jury, had admitted the homi
eide, and We are entirely at q loss to know
BY what process of reasoning the appellant
counsel can claim that the jury could hav,
found otherwise than that the defendan
was guilty OF murder or granddaughter, ex
cept By the exercise Of physical power an
an utter disregard of their oath.
Another alleged ground of error 10 til
exclusion from the consideration Of the jur
q note or writing in the words following:
Mrs. GaY-My darling-Meet me b
moonlight alone"
Signed by = fictitious name.
There was evidence tending to prove tn,
the deceased wrote and sent the note, an
that at the commencement of the difficult
terminating In the death of Forbes, that d
PENDANT charged deceased with the writiu
Of the note.
We incline to the opinion the note was
exclude it. 1t is not enough, however, tn
the court should Improperly exclude ev
dence; We must be able to zee that the e
%clusion Of the evidence may have ipjurt
defendant. In this case it could BY no pa
ability have prejudiced the defendant. II
only effect of the excluded testimony, if
ceived, was to reduce the offense from mu
der to manslaughter. 1t in no way tend,
to justify or excuse, and Is defendant Y,
convicted Of msnslsughter, it is clear he Y,
in no wav prejudiced BY the exclusion Of Il
testimony. Yankton county '. Rossteuscl
er, LIST Dakota, p. 125 ; the people '. Brot
ertown,46 California, 1888, heretofore refe
red to.
Another ground of error urged BY the .
pellant is that the record does not show pe
sonal presence of defendant-frst, when
motion is passed upon BY the court, an
second, during the trial when the judge I
called the jury and gave them addition
instructions. The answer to this questit
is, first, - q matter Of fact the record do
disclose the p~srsonall presence of the defe
dsnt at the time the jury we're recalled q,
, additional instructions given, that he th
} and there took exception to the recalling
the Jury BY the court; and Is to the 9th
proposition that the defendant was not p,
t sonally present when . motion was made
q quash the indictment, We answer, no law b
been referred to nor are We aware of any
: quiring the personal presence Of the def
{ dant upon the argument of . motion. T
statute Of this territory provides that wh
t the indictment il for . felony the defend,
9 must be present and plead in person. F
9 vised codes, p. 874;::sec. 2S7, Grim. procedu
pags $50. Section 343, criminal procedu
provides that the defendant muat be pers'
ally present At the trial. Section 343, cri
: inal procedure. provides that the trial Oh
commence when the jury is impanelled !
. sMorn. The ldefendant must also be pres,
At the rendition of the verdict. Sscsion 3!
code Of criminal procedure. section 4
n code Of criminal procedure, requires
personal presence Of the defendant vi
Judgment is p~ronouneed against him. It
I'll The Legislature Of this territory havi
e thus provided that the defendant shall
$ personally present at certain specified tin
E before and after the trial d we'll a. dur
e the trial, We sae no reason for holding
d defendants personal presence necessary
times other than those prescribed By
statute. We the more readily come to I
conclusion from the fact that his pressncl
1 Al - A.