State v. Mern

South Dakota Supreme Court

State v. Mern

164 N.W. 76, 39 S.D. 285, 1917 S.D. LEXIS 147

CourtSouth Dakota Supreme Court

DecidedAugust 23, 1917

DocketFile No. 4036

StatusPublished

Cited by1 cases

This text of 164 N.W. 76 (State v. Mern) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Mern, 164 N.W. 76, 39 S.D. 285, 1917 S.D. LEXIS 147 (S.D. 1917).

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Opinion

GATE'S, P. J.

The defendant was indicted, jointly with William Ur-en, for the larceny of two horses in Butte county. [286]*286There were separate trials. Uren was convicted, and his conviction was affirmed 'by this court. 39 S. D. 15, 162 N. W. 743. From a judgment of conviction, and an order denying a new trial, defendant appeals.

The testimony on behalf of the state tends to show that Uren brought the horses to the home of one Thorpe, a brother-in-law of defendant, in Perkins county, the latter part of May, 1915; that defendant, a resident of Butte county, whose residence was not far from that of the owner of the stolen horses, and- who was familiar .with the owner’s brands, had been at Thorpe’s place two or three dtys ¡before Uren arrived; and that after a few days Uren and defendant went, away together with the horses, and afterwards disposed of them. Upon this evidence, coupled with the fact that the defendant was seen in Butte county several times in the spring of 1915, we are asked to sustain the conviction. If the charge had been that of receiving stolen property in Perkins county, knowing it to be stolen property, we would find no particular difficulty in sustaining the conviction. It may be, as claimed by the Attorney General, that defendant was with Uren on the way from Butte county to Thorpe’s, and that he went on ahead to see if “the coast was clear;” but there is no evidence thereof. Such claim is based wholly on surmise. Nor does the fact that defendant afterwards claimed to have raised these horses himself tend to prove that he assisted Uren in stealing them. ' We are of the view that there was an entire failure of proof that defendant committed a crime in Butte county.

The judgment and order appealed from are reversed, and the cause is remanded for a new trial.

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GATE'S, P. J.

The defendant was indicted, jointly with William Ur-en, for the larceny of two horses in Butte county. [286]*286There were separate trials. Uren was convicted, and his conviction was affirmed 'by this court. 39 S. D. 15, 162 N. W. 743. From a judgment of conviction, and an order denying a new trial, defendant appeals.

The testimony on behalf of the state tends to show that Uren brought the horses to the home of one Thorpe, a brother-in-law of defendant, in Perkins county, the latter part of May, 1915; that defendant, a resident of Butte county, whose residence was not far from that of the owner of the stolen horses, and- who was familiar .with the owner’s brands, had been at Thorpe’s place two or three dtys ¡before Uren arrived; and that after a few days Uren and defendant went, away together with the horses, and afterwards disposed of them. Upon this evidence, coupled with the fact that the defendant was seen in Butte county several times in the spring of 1915, we are asked to sustain the conviction. If the charge had been that of receiving stolen property in Perkins county, knowing it to be stolen property, we would find no particular difficulty in sustaining the conviction. It may be, as claimed by the Attorney General, that defendant was with Uren on the way from Butte county to Thorpe’s, and that he went on ahead to see if “the coast was clear;” but there is no evidence thereof. Such claim is based wholly on surmise. Nor does the fact that defendant afterwards claimed to have raised these horses himself tend to prove that he assisted Uren in stealing them. ' We are of the view that there was an entire failure of proof that defendant committed a crime in Butte county.

The judgment and order appealed from are reversed, and the cause is remanded for a new trial.

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Bluebook (online)

164 N.W. 76, 39 S.D. 285, 1917 S.D. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mern-sd-1917.

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