State v. Sweeney

31 N.W.2d 758, 72 S.D. 201, 1948 S.D. LEXIS 12

• Court: South Dakota Supreme Court
• Decided: March 29, 1948
• Docket: File No. 8912.
• Status: Published

Opinion

HAYES, J.

Defendant was convicted of robbery in the first degree. During the trial he testified that he had been in the Army and had served in the Merchant Marine at the time of World War II. On cross-examination the state’s attorney asked defendant if he had not been incarcerated in the Federal Reformatory at Elredo, Oklahoma, during the summer of 1944 and if he had not been in prison in 1945 at the North Dakota State Penitentiary. The trial court’s overruling objections to these questions and the sufficiency of the evidence to sustain the conviction are the only matters we are asked to review on this appeal.

Whether the evidence is sufficient is a question not presented by the record of the proceedings below. Defendant made no motion to the trial court during or after the trial proceeding calling into question the sufficiency of the evi dence. In the absence of an appropriate motion or other application to the trial court such question cannot properly be tendered for review here. SDC 34.4109, third paragraph.

The state’s attorney asked defendant about his imprisonments for the purpose of adversely affecting his credibility. Nothing in the record indicates that the imprisonments inquired about were other than punishments imposed upon defendant after convictions for his prior felonies. We believe, therefore, that the opinion of this court in State v. Bechtold, 48 S. D. 219, 203 N. W. 511, sustains the ruling of the learned trial court. Wharton’s Criminal Evidence, 11 Ed, Vol. 3, § 1331, 161 A. L. R. 266 and 278.

The conviction and judgment are affirmed, all of the Judges concurring.