State v. Serenson

Citations

• 7 S.D. 277
• 64 N.W. 130
• 1895 S.D. LEXIS 69

Syllabus

<p>1. Under the rule that admits the best attainable evidence of which a case in its nature is susceptible, the public record of a duly-acknowledged written instrument is admissible in evidence, when material, upon proof that the original is beyond the jurisdiction of the court and is neither owned nor controlled by the party in whose favor the record of such instrument is offered. Comp. Laws, sec. 5308.</p> <p>2. When the question of agency is but incidentally involved, a,nd it is shown, by competent evidence, that the accused has recognized such agency by a course of dealing, it is not reversible error to overrule an objection to the following preliminary, though perhaps indefinite, question, propounded by the state to a witness shown to have represented the party named, in relation to the business out of which the alleged embezzlement arose: “Did you act as agent for Albert E. Egge in any transaction?”</p> <p>3. Under the facts and circumstances of this case, the defendant has no reason to complain of the following instruction, which is in the precise language of section 6805 of the Compiled Laws: “The fact that the accused intended to restore the property embezzled, is no ground for defense, or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense. ”</p> <p>4. For the purpose of elucidating, and with a desire to render more intelligible, the phrase, “reasonable doubt,” the court instructed the jury as follows: “You are further instructed that the reasonable doubt which entitles an accused to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond reasonable doubt when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction, on which they would act without hesitation, in their own most important concerns or affairs of life. In other words, in a legal sense, a reaso