State v. Damm

I am not satisfied with the disposition, made by the majority of the court, of the assignment predicated upon the calling of defendant's wife to the witness stand. I think the objection of the appellant to the conduct of the state's attorney is well taken. The state's attorney was familiar with the provisions of section 2717, subd. 1, Rev. Code 1919, as amended by chapter 412, Laws 1921, to the effect that a wife cannot testify against her husband without his consent; he also knew, or could have known by asking defendant or his counsel, in the absence of the jury, that the defendant would not consent to have his wife testify against him. The state's attorney also knew that the defendant's wife was very hostile to defendant at the trial, and was doing everything within her power to aid in the prosecution of the case. Under these circumstances, the refusal of the defendant to permit his wife to testify against him would naturally suggest to the minds of the jury that she knew facts that would be damaging to him in the trial, and that by refusing to permit her to testify he was withholding such facts from them. But this of itself would not have been so damaging. Defendant would have interposed his objection, the objection would have been sustained, and the incident would, to some extent at least, have been forgotten. But for the state's attorney to blurt out, as he did, when defendant was in the act of making his objection: "At this time, may it please the court, the state asks permission of the defendant to place his wife on the stand to testify" would naturally make a lasting impression on the minds of the jury, and it could have been done for no other purpose than to advertise to the jury the fact that the defendant was suppressing material evidence, and that for that reason he was afraid to permit her to testify. The jury would naturally feel that the defendant was keeping facts from them that would tend to prove the guilt of the defendant; and a juror might even go further and believe that the refusal of the defendant to permit his wife to testify was an admission by the defendant that he was guilty.

We recently reversed a judgment of conviction of robbery on the sole ground of misconduct of the state's attorney where the misconduct was far less flagrant than the conduct ecomplained of in this case. State v. Mitchell, 61 S.D. 147, 246 N.W. 635. In that case the misconduct consisted of asking questions that implied that the accused had been guilty of another crime unconnected with the one involved on the trial.

The question of misconduct of the state's attorney was considered at length in State v. La Mont, 23 S.D. 174, 120 N.W. 1104. That case, like this, was a prosecution against a father for raping his minor daughter. The misconduct consisted of the asking of improper questions on cross-examination. The offense of the state's attorney in that case was less flagrant than in this because in that case the state's attorney was acting in good faith, while in this case the offensive question was asked for the sole purpose of prejudicing the defendant. In the La Mont Case the matter was considered at considerable length, and the cases on the subject were collected and reviewed.