State v. Hammond

Citations

• 14 S.D. 545
• 86 N.W. 627
• 1901 S.D. LEXIS 58

Syllabus

<p>1. On the trial of the defendant for assault, the state’s attorney stated that the place where the asasult was committed would be in issue, whereupon the court sustained the state’s challenges to seven jurors who had previously served in the trial of another involved in the same affray, though such jurors stated that while they had formed an opinion as to whether the place where the altercation occurred was a highway, and still had such opinion, they had no opinion as to the guilt or innocence of the defendant, and would try the issue in the case fairly and impartially, and decide the same according to the law and the evidence, and that evidence that the place was or was not a highway would not affect their decision. Defendant objected to the challenges, and duly excepted to the court’s excusing them, which necessitated the calling of talesmen to complete the jury. In the trial of the case, the character of the place where the assault occurred did not in fact become an issue. Held, that the sustaining of such challenges was prejudical error, entitling defendant to a new trial.</p> <p>2. The fact that defendant did not exhaust all his peremptory challenges was not a waiver of such error, since, where jurors are erroneously excused on objection of the adverse party, the exercise or failure to exercise a challenge could not restore them.</p> <p>3. Where the court erroneously sustains challenges to jurors over the objection of a party, who takes an exception at the time, the fact that he makes no further objection to the jury at the time it is sworn to try the cause is not a waiver of his exception, since his objection and exception at the time of the ruling excusing the juror is sufficient to protect his rights on appeal.</p> <p>4. Where, in a prosecution for assault with a deadly weapon, the instrument used was of such a character that the court could not say as matter of law, whether it was or was not a deadly weapon, it was not error for the court to submit such