State v. Strain , 63 S.D. 639 ( 1935 )

The robbery and killing here involved occurred at Kaylor in Hutchinson county, S.D., shortly before noon on Thursday, April 20, 1933. Less than twenty-four hours thereafter, and during the forenoon of Friday, April 21, appellant was at his place of residence at Milbank in Grant county, S.D., where he was accosted and interviewed with reference to a matter entirely foreign to this case by the sheriff of Grant county, S.D., whom he knew to be such sheriff. Appellant produced the sheriff of Grant county as a witness and offered to show by him that he (appellant) did not present the appearance of being scared, nervous, or excited when accosted by the sheriff the morning after the crime. The evidence thus offered was excluded by the court upon objection on the part of the state. The state's witness Freitag had already testified that the participant in the robbery, whom he identified as the appellant, was "very excited and awful nervous." It would seem a legitimate deduction and quite in accord with human experience that a participant in a crime who exhibited marked and noticeable excitement and nervousness during the commission thereof might likewise exhibit nervousness and excitement when suddenly and unexpectedly summoned to an interview with the sheriff the next morning. If appellant did not exhibit such nervousness or excitement, then I believe, under the circumstances, it would be permissible for the jurors to draw from such fact an inference of consciousness of innocence on the part of appellant. I realize that courts have not been as liberal in admitting conduct of an accused as a basis for an inference of consciousness of innocence on his part as they have in admitting conduct when offered by the state as a basis for an inference of consciousness of guilt. The matter is discussed in Wigmore on Evidence (2d Ed.) §§ 174, 293, and I believe the sounder view is there expressed as the opinion of the learned author in the following language: "Let the accused's whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and is not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations." I am therefore of the opinion that the court erred in excluding the appellant's offer of this testimony.

The question then arises as to whether or not such error was prejudicial. Certainly mere technical error should not work a reversal unless the substantial rights of the accused have been adversely affected. Section 5044, Rev. Code 1919. In the instant case, however, the only evidence in any wise connecting appellant with the crime charged is the testimony of several eyewitnesses who saw one of the robbers and talked with him briefly, and who identify appellant as being, in their opinion, the man whom they saw and with whom they talked. None of these witnesses know appellant or had ever before seen him. Their observation was casual and of brief duration. Immediately supervening came a period of admitted excitement, turmoil, and emotional stress. It was not until after the arrest of appellant, approximately ten weeks later, that they saw him in jail and first attempted any identification. There is no ground whatever for imputing to these witnesses any intentional false swearing or bad faith. A careful study of the entire record, however, compels me to the conclusion that reasonable, intelligent, and conscientious men might very well differ in opinion as to whether or not these witnesses who undertook to identify appellant as a participant in the crime were honestly mistaken in such identification. Conceding that the testimony of such witnesses, if believed by the jury, sufficiently supports the verdict, and conceding that under our system the weight of evidence and the credibility of witnesses generally are for the jury rather than for an appellate court, at least up to the limits of reasonable belief, nevertheless I think it must be said that this case is a very close one on the vital and controlling fact of identity. It seems to me so close a case that any additional bit of evidence justifying or permitting an inference favorable to the appellant might very possibly have turned the scales in the mind of one or more of the jurors and might have been enough to cause such juror or jurors to entertain a reasonable doubt as to the guilt of appellant. As before stated, I believe the exclusion of the offered evidence was erroneous. Under the circumstances disclosed by this record, I am unable to say that the erroneous exclusion of any evidence offered by appellant justifying, even though not requiring, an inference favorable to him, was error without prejudice.

I am therefore of the opinion that in excluding this evidence the trial court erred to the prejudice of appellant, and consequently I concur in the view that the judgment and order appealed from should be reversed and the cause remanded for a new trial.