"Whenever the salary of any county officer is based upon the assessed valuation of the property of his county, such valuation, for the purpose of determining his salary hereafter and until March 1st, 1915, shall be figured upon the basis of the 1912 assessment, as returned by the state board of equalization: Provided, that if in any county the ratio of its valuation for any year subsequent to 1912, as compared with the valuation of the property of this state, increases above the average increase of valuation for subsequent years within the state, then the percentage of its increase above the average increase in valuation within the state shall be added to the assessment of any such county for 1912 as the basis of fixing and regulating the salaries of any such county officers.

"Sec. 2. Whereas, it is claimed a great increase of assessed valuation of the property of the state is likely to result from the enactment of the law known as the 'Tax Commission Law,' and many salaries now being based upon such valuation, an emergency is declared to exist, and this act shall be in force and effect from and after its passage and approval."

In 1915 another act was passed (chapter 128, Laws 1915, approved March 5, 1915), providing that:

"Whenever the salary of any county officer is based upon the assessed valuation of the property of his county, such valuation, for the purpose of determining his salary hereafter shall be figured upon the basis of the 1912 assessment, as returned by the state board of equalization: Provided, that if in any county the ratio of its valuation for any year subsequent to 1912, as compared with the valuation of the property of this state, increases above the average increase of valuation for subsequent years within the state, then the percentage of its increase above the average increase in valuation within the state shall be added to the assessment of any such county for 1912 as the basis of fixing and regulating the salaries of any such county officers.

"Sec. 2. Chapter 315, Session Laws of 1913, is hereby repealed.

"Sec. 3. An emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage and approval."

Stanley county was divided, and the two new counties created. pursuant to chapter 100, Laws 1907, which provided that:

"If a majority of the votes cast at the next general election in such county shall be favorable to such division of such county, the portion in which the county seat thereof is located shall retain the name and organization of such county, and the portion in which the county seat is not located shall take the name prayed for in the petition for the division of the county, and the Governor of the state shall forthwith proceed to organize the same as a county under such name, in the same manner as is provided by article 2 of chapter 12 of the Political Code of 1903, and until such organization is perfected the said portion of such county shall, for criminal and civil purposes, remain and be a portion of such original county."

It is apparent, upon reading the act of 1913, as well as the act of 1915, supra, that chapter 254, Laws 1909, was suspended by the act of 1913 until March 1, 1915, and repealed by the act of 1915, and a new and different basis substituted, upon which to base the salaries of county auditors. The Legislature, as the starting point for the new system of figuring salaries, fixed the salary of the auditor in each of the counties of the state at the amount paid its auditor in the year 1912, and provided for an increase in such salaries, to be figured on the basis of the average per cent. of increase in valuation of property in the state over the valuation for 1912, and adding that percentage to the salary, instead of fixing such salaries upon the basis of the county assessment, as was done under chapter 254, Laws 1909. The acts of 1913 and 1915 clearly guarded against an increase of salaries by reason of the enactment of the tax commission law. It cannot be inferred that a decrease of salary was intended in case of the division of a county. If the Legislature had intended that upon a division of a county the salary should be based upon the 1912 assessment of that portion of the territory in the new county, it certainly would have enacted a provision to cover such a case.

If this construction is correct, and we think it is, the county auditor of Stanley county would be entitled at least to the same. salary paid the county auditor of that county for the year 1912. The record contains no facts from which any increase in salary could be claimed, and in any event plaintiff could not now increase his claim against the county. The trial court found that the assessed valuation of Stanley county as returned by the state board of equalization for the year 1912, was $9,063.116. The

salary of the county auditor for that year, as fixed by subdivision 4, § 1, c. 254, Laws 1909, was $1,500 per year, or at the rate of $125 per month.

It follows that the judgment of the trial court should be affirmed; and it will be so ordered and adjudged.

WHITING, J. (dissenting). Respondent's term of office did not commence until after the division into three counties of what was formerly Stanley county. Under these circumstances, I am of the opinion that his salary should be based on the 1912 assessed valuation of the property in that part of the old Stanley county which became the new Stanley county, just as the salaries of the auditor in either Haakon or Jackson counties should be based on the assessed valuation of the property in that part of old Stanley county which, after division, was organized into the county of which he became auditor. If my Colleagues are correct, and chapter 128, Laws 1915, had never been repealed, the county auditors of the present Stanley county would yet draw salaries based upon the 1912 assessed valuation of the property in the old county.

I cannot subscribe to a conclusion that would sustain such a result.

1.

STATE, Respondent, v. WAITMAN, Appellant.
(172 N. W. 504).

(File No. 4539. Opinion filed May 13, 1919.)
Trials-Misconduct of State's Attorney-Larceny Repeated At-
tempts to Prove Another Disconnected Offense, Effect Re
Ethics, Re Prejudice-Failure to Request Jury's Disregard of
Matters, Court's Specific Instruction, Effect.

Where, in a prosecution for grand larceny state's attorney repeatedly attempted to introduce evidence tending to show defendant guilty of an offense aaginst the United States, which offense was disconnected with that charged in the information, held, that, such evidence being incompetent and immaterial, such procedure constituted misconduct of state's attorney, and trial court would have been warranted in reprimanding him therefor; but that such procedure was not prejudicial to defendant; defendant's counsel not having called the matter to court's attention other than by objections to introduction of the evidence, and did not request court to direct jury to disregard said matters. So held, trial court having instructed that jury were not to try defendant for any offense other than the

2.

3.

crime charged in the information; such instruction having cured the error, if any committed.

Same-Jury, Improper Influence Of, Communication With Bailiff-Question of Fact, Court's Discretion, Effect.

Where, in a prosecution for grand larceny, defendant claiming improper influence of jury through a conversation between bailiff and members of jury, conflicting affidavits were submitted concerning the facts, held, such question of fact was one for trial court's determination, and if not satisfied of truth of matters stated in defendant s affidavits, court did not abuse discretion in denying new trial on that ground.

Samo-Jury, Improper Influence Through Paper Found in Juryroom-Facts Considered, Re Error.

Nor does the fact that while jury was deliberating a juror found a paper in jury-room endorsed "The defendant was permitted to change his plea of guilty to a plea of not guilty," constitute improper influence amounting to prejudicial error alleged as such because it appeared of record there had been some negotiations between defendant and state's attorney that defendant would enter plea of guilty, and that if jury were informed that defendant had seriously contemplated pleading guilty they would infer he was in fact guilty; it not appearing how the paper came into jury-room, a majority of jurors having deposed they had not seen it and that it was not talked about by jurors, and juror claiming to have seen it not claiming he was influenced thereby; defendant not questioning sufficiency of evidence.

Appeal from Circuit Court, Jones County. HON. WILLIAM WILLIAMSON, Judge.

The defendant, J. P. Waitman, was convicted of the crime of grand larceny, and he appeals. Affirmed.

J. E. House, for Appellant.

Byron S. Payne, Attorney General, and Herman L. Bode, State's Attorney, for Respondent.

(1) To point one of the opinion, Appellant cited:

16 C. J. 891; State v. Barton, (Ore.), 142 Pac. 348; Flint v.

Commonwealth 23 S. W. 346.

Respondent cited, re failure to except:

State v. Guffey, 39 S. D. 84, 163 N. W. 679.

(2) To point two, Appellant cited:

Owens v. State, 67 So. 39, Ann. Cas. 1917B 252.

Respondent cited:

State v. Southmayd, 37 S. D. 375. 381; Hackley v. Hastie, 3 Johns 253; 1 Hayne on New Trials, Sec. 67, page 318.

(3) To point three, Respondent cited, re effect of sufficiency of evidence; Burdick v. Haggart, 4 N. D. 13, 22 N. W. 589.

POLLEY, J. Defendant was found guilty of the crime of grand larceny, and from a judgment of conviction and an order overruling his motion for a new trial he appeals to this court.

Appellant contends that he was prevented from having a fair trial by misconduct of the state's attorney, misconduct of the jury, and misconduct of the bailiffs.

[1] Under the first assignment it is shown that the state's attorney made repeated attempts to get evidence before the jury tending to show that the appellant had been guilty of an offense against the United States government. The offense against the government, if it had been committed, was in no manner connected with the offense charged in the information upon which appellant was being tried, and the evidence sought to be elicited was incompetent and immaterial. But the state's attorney made repeated efforts to get such evidence in the record after appellant's objection to its reception had been sustained by the trial court. This procedure constituted misconduct on the part of the state's attorney, and the court would have been warranted in reprimanding him in open court at the time. But we do not believe that defendant was prejudiced by such conduct. Counsel for appellant does not appear to have considered said conduct prejudicial at the time, and did not call the matter to the court's attention other than by objections to the introduction of the evidence, and did not request the court to direct the jury to disregard the matters that had been so injected into the case by the questions asked by the state's attorney. Moreover, the court, on its own motion instructed the jury, in effect, that they were not to try defendant for any offense he may have committed at any time or place other than the crime. charged in the information. This, we believe, cured the error, if any had been committed. This was evidently the view of the trial court when it denied a new trial, and we cannot say, upon the record before us, that the trial court was in error, or that appellant was in fact prejudiced by such misconduct of counsel. Fowler v. Land Co., 18 S. D. 131, 99 N. W. 1095.

[2] To further show that the jury had been improperly influenced against him, appellant filed affidavits, in which it is stated. that, after the case had been submitted to the jury, and while the jury was in charge of the bailiffs, one of the bailiffs was seen car