Opinion
File No. 8912.
Opinion filed March 29, 1948.
1. Criminal Law.
A reviewing court could not consider question of sufficiency of evidence to sustain conviction where defendant had made no motion at trial raising that question. SDC 34.4109.
2. Witnesses.
Inquiry during cross-examination of defendant in robbery prosecution concerning prior incarceration in federal reformatory and state penitentiary for purpose of affecting his credibility was not error in absence of anything indicating that imprisonments inquired about were other than for prior felonies.
Appeal from Circuit Court, Aurora County; Hon. R.C. Bakewell, Judge.
Jack Sweeney was convicted of robbery and he appeals.
Judgment affirmed.
Walter C. Miller, of Plankinton, for Defendant and Appellant.
Sigurd Anderson, Atty. Gen., Charles P. Warren, Asst. Atty. Gen., and Leo V. Ryan, State's Atty. of Aurora County, of Plankinton, for Plaintiff and Respondent.
Defendant was convicted of robbery in the first degree. During the trial he testified that he had been in the Army and had served in the Merchant Marine at the time of World War II. On cross-examination the state's attorney asked defendant if he had not been incarcerated in the Federal Reformatory at Elredo, Oklahoma, during the summer of 1944 and if he had not been in prison in 1945 at the North Dakota State Penitentiary. The trial court's overruling objections to these questions and the sufficiency of the evidence to sustain the conviction are the only matters we are asked to review on this appeal.
Whether the evidence is sufficient is a question not presented by the record of the proceedings below. Defendant made no motion to the trial court during or after the trial proceeding calling into question the sufficiency of the evidence. In the absence of an appropriate motion or other application to the trial court such question cannot properly be tendered for review here. SDC 34.4109, third paragraph.
The state's attorney asked defendant about his imprisonments for the purpose of adversely affecting his credibility. Nothing in the record indicates that the imprisonments inquired about were other than punishments imposed upon defendant after convictions for his prior felonies. We believe, therefore, that the opinion of this court in State v. Bechtold, 48 S.D. 219, 203 N.W. 511, sustains the ruling of the learned trial court. Wharton's Criminal Evidence, 11 Ed., Vol. 3, § 1331, 161 A.L.R. 266 and 278.
The conviction and judgment are affirmed, all of the Judges concurring.