[1] This case now comes before this court upon a second appeal. On the previous appeal the judgment and an order denying a motion for a new trial were reversed, with the direction that count II, contained in the information, be dismissed. A new trial was granted as to count I remaining in the information. A sufficient general statement of the facts will be found in 61 S.D. 195,247 N.W. 407 (1933), where our former decision is recorded. Such opinion has become the law of this case so far as applicable to the record now before us. Downs et al v. Bruce Ind. Sch. Dist. etc. (1927) 52 S.D. 168, 216 N.W. 949.
Upon the case being remanded to the lower court, an order was granted changing the place of trial to Pennington county. The defendant and appellant was duly tried in said county; and the jury having returned a verdict of guilty as charged under count I of the information, judgment was entered accordingly. An appeal was duly perfected from such judgment, and an order denying a motion for a new trial. Upon said appeal, ninety-three errors are assigned as grounds for a reversal of the trial court. For the sake of brevity, these various assignments of error may be grouped, for the purposes of this opinion, as they raise but a few general questions of law that we deem worthy of consideration.
We held, upon the former appeal, that all transactions set forth in the bill of particulars, furnished by the state under an order of the trial court, were barred by the statute of limitations, except what was termed the "Conard transaction" alleged to have taken place on or about January 8, 1927, but which, according to the undisputed evidence, was completed on March 7, 1925. This was a simple transaction involving $500, and complete in itself; the details of which are fully set forth in our former opinion to which reference is now made. The charge based upon the "Conard transaction" is one of embezzlement of public funds. Under the established law of this case, all other transactions included in count I of the information are barred by the statute of limitations; so it is with the "Conard transaction" alone that we are now concerned.
[2] The state offered in evidence, upon the second trial, Exhibit No. 52, which the record discloses was the same instrument *Page 181 designated Exhibit 48 upon the former trial; and which we held was inadmissible under the record upon the prior appeal. This instrument was prepared by one Myers, a state accountant, who had made an audit of the records in the offices of the county treasurer and county auditor of Lawrence county, and covered the tax records of said county for the years 1918 to 1927 inclusive; it contained general information reflecting book shortages and discrepancies between the gross amount of tax collections as shown by the tax receipts issued' and the amount of cash entered upon the cashbooks. The instrument was prepared by the witness personally from the records of Lawrence county, which records were received in evidence as a part of the state's case. The court admitted this exhibit, over proper objections interposed by appellant, solely for the purpose of permitting the witness to use it to refresh his recollection while giving oral testimony. The exhibit was not permitted to go to the jury room. We are inclined to the view that it was not error to permit the witness to use this exhibit solely for the purpose of refreshing his memory, so long as its use was confined to proper, competent, and pertinent transactions. State v. Ewert (1928) 52 S.D. 619, 219 N.W. 817; State v. Clements (1901) 82 Minn. 434, 85 N.W. 229; Loose v. State (1903) 120 Wis. 115, 97 N.W. 526.
By numerous and appropriate assignments of error the appellant has challenged the correctness of the trial court's rulings in admitting evidence of prior alleged transactions and shortages under the guise of showing intent, motive, and system.
[3] The state offered evidence of a general character showing alleged shortages resulting from discrepancies between the gross amount of the tax receipts issued by the county treasurer and the amount of cash entered upon the cashbooks of Lawrence county during the years 1918 to 1927 inclusive. No attempt was made to show that the appellant actually obtained the physical possession of, or appropriated, the money reflected by these shortages; nor does it appear from the record just what became of the money, if in fact it was collected. Some specific transactions were dealt with, principally the "McCord Brady items," the "J. Lowe items" and the "W.E. Lowe items." The transactions involving these items occurred in 1921 and 1922 and at a time when appellant was *Page 182 county treasurer of Lawrence county. The record shows that tax receipts were manipulated and records juggled; and most, if not all, of the records showing such manipulations are in the handwriting of the appellant.
The general rule is: "that when a man is put upon trial for one offense, he is to be convicted, if it all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon his trial, must be excluded." 8 R.C.L. 198.
[4, 5] There is, however, an exception to the general rule that applies to embezzlement cases and kindred offenses. That exception is that the state may show prior acts and conduct on the part of the accused of like character in order to establish intent, motive, and system. That is, the state may introduce evidence tending to show prior acts of embezzlement and misconduct of the kind involved in the case on trial, provided, however, that such prior acts and conduct bear a direct relation to the offense for which the accused is on trial. While this case is in the twilight zone because of the fact that the appellant was on trial for the "Conard transaction" alone, yet we believe the case comes within the exception and the rule announced in State v. Ewert, supra. Also, see, State v. Downer (1912) 68 Wash. 672, 123 P. 1073, 43 L.R.A. (N.S.) 774, also the note in the L.R.A. volume following the reported case; and note, 62 L.R.A. beginning at page 264; also State v. Heaton (1927) 56 N.D. 357,217 N.W. 531.
The court properly limited the purpose for which this evidence was received in its instructions to the jury, and while much of the evidence was remote and somewhat vague, yet we believe no prejudice resulted and that the case should not be reversed because of the reception of this evidence.
Error is predicated upon alleged misconduct of the state's counsel and improper comment on the part of the trial court and the prosecutors when the state presented its case to the jury. The following quoted from the record fully discloses the situation with which we are now concerned:
"That during the opening argument to the jury counsel for the state in commenting upon the failure of the defendant to take the *Page 183 witness stand and testify on his own behalf said: `That the defendant Wolfe has failed to take the witness stand and explain, and the only reason Wolfe has not taken the witness stand and denied his connection with the charge against him is because he is guilty and he knows he is guilty.' That objection and exception was immediately taken by defendant's counsel to such statement as misconduct of counsel and outside and in violation of the defendant's statutory and constitutional rights. That immediately upon exception being taken the court overruled such exception of the defendant and said to the jury: `The jury will not, of course, take the statement of the States Attorney into consideration as a fact of any evidence in the case.' Exception allowed.
"That in his closing argument to the jury, Francis J. Parker, special prosecutor for the state, in commenting upon the failure of the defendant to take the witness stand in his own behalf, said to the jury: `What do you think of the defendant not taking the stand, he is admitting he committed this crime.' That immediately thereupon defendant's counsel objected and excepted to such statement as misconduct of counsel, as prejudicial, as a misstatement of the law and of fact, and as improper argument. That immediately thereupon the court overruled such exception and stated: `Defendant's counsel admitted that he (Wolfe) made all these entries,' and in other words that all the exhibits that the state offered evidence of to show were in his handwriting. That defendant's counsel immediately thereupon excepted to such statement by the court; and further excepted to such statement by the States Attorney for the reason that defendant's guilt is one of the issues in this action which arose by defendant's plea of not guilty, that such statement by the special prosecutor was contrary to the instructions of the court, and a matter upon which the court has instructed the jury that they shall find, and misconduct of counsel, as improper argument. That thereupon the court overruled the latter exception and advised counsel to proceed with the argument."
In fairness to the trial court it should he stated that there is a stipulation in the record to the effect that the appellant conceded that the exhibits offered in evidence by the state were in appellant's handwriting.
[6] There is some confusion in the record and some discrepancy *Page 184 between the court reporter's notes and the affidavits of appellant's counsel, from which the above is quoted, and which are properly in the record before us. We think the questions involved are properly presented by affidavits, and since the statements contained in the affidavits of appellant's counsel are not denied by any rebuttal affidavit, such statements must be treated as true. Section 2556, R.C. 1919; Morris v. Hubbard (1901) 14 S.D. 525, 86 N.W. 25; Heenan v. South Dakota Provision Co. (1917) 38 S.D. 292, 161 N.W. 191; Warwick v. Bliss (1922)45 S.D. 388, 187 N.W. 715; State v. Ferguson (1925) 48 S.D. 346, 204 N.W. 652.
The alleged improper conduct and statements of the trial court and the state's counsel are presented by proper assignments of error. While the objections made and the exceptions taken to the remarks of the court and the prosecutors might have been more comprehensive, we believe the record is sufficient to raise the constitutional question with which we are now confronted.
Section 4879 of the Revised 1919 Code of South Dakota, before its amendment in 1927, read as follows: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of any crime, before any court or committing magistrate, the person charged shall, at his own request but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him."
[7] By chapter 93 of the 1927 Session Laws of South Dakota the above quoted section of our Code was amended to read as follows: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of any crime, before any Court or committing magistrate, the person charged shall, at his own request, but not otherwise, be a competent witness, and his failure to testify in his own behalf, is hereby declared to be a proper subject of comment by the prosecuting attorney; provided, however, that if such comment is made by the prosecuting attorney in his closing argument, without any previous reference thereto having been made in argument either on behalf of the state or the defendant, the attorney for the defendant may thereafter, if he so request the court, argue upon such comment for such time as the court shall fix." *Page 185
By section 9 of article 6 of the Constitution of this state, it is provided: "No person shall be compelled in any criminal case to give evidence against himself."
The section of our Constitution above referred to was the subject of a most able and exhaustive discussion by one of the judges of this court in the case of State v. Smith (1929) 56 S.D. 238, 228 N.W. 240, and also in the more recent case of State ex rel Poach v. Sly (1934) 63 S.D. 162, 257 N.W. 113, 116. While a different state of facts was before the court in each of the above cases, yet we believe the principles of law therein set forth apply with equal force to the case we are now considering. We reaffirm and reiterate all that was said concerning the constitutional rights of an accused in both the Smith and Sly Cases. Apt is the language of Mr. Justice Cardozo, Matter of Doyle (1931) 257 N.Y. 244, 177 N.E. 489, 491, 87 A.L.R. 418, when he said, referring to an identical provision of the New York Constitution:
"The privilege may not be violated because in a particular case its restraints are inconvenient or because the supposed malefactor may be a subject of public execration or because the disclosure of his wrongdoing will promote the public weal.
"It is a barrier interposed between the individual and the power of the government, a barrier interposed by the sovereign people of the state; and neither legislators nor judges are free to overleap it."
Prior to the amendment of 1927, above referred to, this court almost uniformly held that it was reversible error for the prosecutor to comment, in his argument before the jury, upon the fact that the accused did not take the witness stand in his own behalf. See State v. Garrington (1898) 11 S.D. 178, 76 N.W. 326; State v. Bennett (1907) 21 S.D. 396, 113 N.W. 78; State v. Jones (1907) 21 S.D. 469, 113 N.W. 716; State v. Carlisle (1911)28 S.D. 169, 132 N.W. 686, Ann. Cas. 1914B, 395; State v. Knapp (1914) 33 S.D. 177, 144 N.W. 921; State v. Sonneschein (1916)37 S.D. 585, 159 N.W. 101; State v. Vroman (1922) 45 S.D. 465, 188 N.W. 746, 749; State v. Wimpsett (1922) 46 S.D. 6, 189 N.W. 983; State v. Lindic (1927) 51 S.D. 516, 215 N.W. 495.
In the case of State v. Vroman, supra, this court had under *Page 186 consideration alleged improper comments on the part of the prosecutor relating to exemption on the part of the accused claimed when he was upon the witness stand. Judge Smith, speaking for the court, said: "We are of the view that the right to claim exemption on the witness stand is as fully protected by the statute, which is merely a legislative interpretation of section 9, art. 6, of the Constitution, as is his failure to testify at all, and that the state is equally precluded from commenting on the fact of such claim being made as it is from commenting on the fact that the accused has failed to testify at all. We think no presumption arises or can be properly urged against the accused in either case without an invasion of his constitutional rights."
In view of the language above quoted from the Vroman Case, it is quite clear that this court is committed to the rule that it is a violation of constitutional rights to permit comment on the failure of the accused to testify. If such is the law, it is equally clear that such constitutional rights cannot be abrogated, abridged, or curtailed by the mere passage of a statute by the legislative branch of our state government.
The courts of other jurisdictions have adopted the same rule promulgated by this court in State v. Vroman, supra. See People v. Tyler (1869) 36 Cal. 522; Petite v. People (1886) 8 Colo. 518, 9 P. 622; Commonwealth v. Harlow (1872) 110 Mass. 411; Commonwealth v. Scott (1877) 123 Mass. 239, 25 Am. Rep. 87; Ruloff v. People (1871) 45 N.Y. 213; State v. Howard (1892)35 S.C. 197, 14 S.E. 481; Staples v. State (1890) 89 Tenn. 231, 14 S.W. 603; State v. Cameron (1868) 40 Vt. 555; Price v. Commonwealth (1883) 77 Va. 393; Anderson v. State (1921) 27 Wyo. 345, 196 P. 1047; State v. Pavelich (1928) 150 Wash. 411,273 P. 182, affirmed on rehearing (1929) 153 Wash. 701, 279 P. 1107, followed and approved Id. (1929) 153 Wash. 379, 279 P. 1102.
The only case to the contrary that we have been able to find is State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, decided in 1871. Our investigations have failed to reveal that this case has ever been followed by any other court. The reasoning adopted in this case does not appeal to us; it is not in accord with the more modern authorities.
So far as we have been able to discover, South Dakota is the *Page 187 only state having a constitutional provision against self-incrimination that has undertaken, solely by legislative act, to authorize comment on the defendant's failure to testify. A similar legislative attempt in Louisiana failed of passage. The successful attempt to change the rule in Ohio and the unsuccessful attempts to change it in New York and Michigan were all three by constitutional amendment. See 31 Mich. Law Rev. 40 (1932).
The United States and forty-six of the forty-eight states have provisions in their Constitutions against self-incrimination, New Jersey and Iowa having no such constitutional provisions. See article by Mr. Reeder, 31 Mich. Law Rev. 40. It is indeed a singular fact that South Dakota alone has by legislative enactment attempted to authorize comment on the accused's failure to testify in the teeth of its constitutional provision against self-incrimination.
We are of the view that the Legislature was without authority, by legislative enactment, to permit comment on the defendant's failure to testify in a criminal case; and that so much of chapter 93 of the Laws of 1927 as purports to permit such comment is not binding upon the judiciary of the state.
It may be that the right to comment upon the failure of the accused to exercise his right to become a witness in his own behalf should be conferred upon prosecutors as a matter of public policy; but if prosecutors are to have such right it must be conferred upon them by constitutional amendment. As stated by this court in State ex rel. Poach v. Sly, supra: "But if such a change in the organic structure and underlying theory of our system of criminal law is to be made, it must be made by the people by constitutional amendment, and, until the Constitutions are changed, it cannot and must not be made by legislative enactment or judicial interpretation."
This court is committed to the rule that constitutional rights may be indirectly invaded as effectively as if directly transgressed. State ex rel Poach v. Sly, supra.
[8] If we place our stamp of approval upon the procedure adopted in this case, we are writing law that will compel every defendant in a criminal case to take the witness stand and testify and thereby subject his whole life's record to the most relentless cross-examination, or face the alternative of having the prosecutor, in the most violent manner, parade before the jury the claimed *Page 188 fact that the defendant is guilty because he chose to stand upon his constitutional rights; and especially is this most prejudicial where, as in this case, by inference at least, the trial court placed his stamp of approval upon the statements of the prosecutor. The practical situation established by the record before us is substantially this: The appellant availed himself of his constitutional right not to testify. The state's attorney said he did not testify because he was guilty and knew it. The special prosecutor told the jury that by not testifying the appellant admitted his guilt. The trial court backed up the special prosecutor by stating, in the presence of the jury, that the false records were admittedly in the handwriting of the appellant.
The appellant's constitutional rights were invaded, for which a new trial must be granted.
[9] Appellant has assigned as grounds for a new trial insufficiency of the evidence to support the verdict and the judgment based thereon. We have carefully examined the evidence and are satisfied that there is sufficient legal and competent evidence in the record, if believed by the jury, to support the verdict. It is not our province to substitute our judgment for the verdict of the jury if the evidence is sufficient, as a matter of law, to justify the verdict. State v. Egland (1909)23 S.D. 323, 121 N.W. 798, 139 Am. St. Rep. 1066; State v. Lamb (1917) 39 S.D. 307, 164 N.W. 69; State v. Hochgraber (1926)49 S.D. 463, 207 N.W. 470; State v. Perkinson (1926) 50 S.D. 479, 210 N.W. 732.
[10] Appellant claims newly discovered evidence in support of his motion for a new trial. Such claimed newly discovered evidence is impeachment in its character. No diligence is shown. It was not an abuse of judicial discretion to deny the motion upon such grounds. State v. Gregory (1913) 31 S.D. 425, 141 N.W. 365; State v. Weston et al (1924) 47 S.D. 328, 198 N.W. 826; State v. Wolfe (1933) 61 S.D. 195, 247 N.W. 407.
Other errors are assigned, all of which have been carefully considered, but are not deemed of sufficient importance to warrant further extending this opinion. We are satisfied the trial court's rulings were correct, or if not, no prejudice resulted.
The judgment and order denying a new trial are reversed and a new trial granted. *Page 189
BAKEWELL and BECK, Circuit Judges, sitting for POLLEY, P.J., and ROBERTS, J., disqualified.
CAMPBELL and WARREN, JJ., concur.
RUDOLPH, J., and Bakewell, Circuit Judge, dissent.