State ex rel Callahan v. Hughes

• Decision Date: 10 February 1925
• Docket Number: 5822
• Citation: 202 N.W. 285,48 S.D. 95
• Parties: STATE OF SOUTH DAKOTA ex rel J. F. CALLAHAN, Plaintiff, v. JOHN F. HUGHES et al, Defendants.
• Court: South Dakota Supreme Court

48 S.D. 95

202 N.W. 285

STATE OF SOUTH DAKOTA ex rel J. F. CALLAHAN, Plaintiff,

v.

JOHN F. HUGHES et al, Defendants. South Dakota Supreme Court Original Proceeding for Writ of Mandamus #5822--Writ denied. J. F. Callahan, Casselton, N. D. Attorney for Plaintiff. John F. Hughes, Fort Pierre, SD pro se. N. D. Burch, Dallas, SD pro se. Opinion filed February 10, 1925

POLLEY, P. J.

This is an original proceeding brought by relator as state's attorney of Stanley county, and is before us upon the return to an alternative writ of mandamus directed to John F. Hughes and N. D. Burch, as circuit judges, requiring them to cause one Arthur Johnson to appear in said court and to pronounce sentence upon him as provided by law.

It appears by the affidavit in support of the said alternative writ that on the 13th day of March, 1923, the said Arthur Johnson appeared in the circuit court in and for Stanley county, with the defendant N. D. Burch presiding, and there entered a plea of guilty to an information charging him with the violation of the prohibition law. That the said court did not at said time appoint a time for pronouncing sentence upon the said Johnson nor make any other order or disposition of the said matter, and that no order of any kind has ever been made in the said matter, but that the said Johnson was allowed to go at large and has continued to remain at large unlit the present time.

Section 4947, R. C. 1919, provides that upon a verdict or plea of guilty the court must appoint a time for pronouncing sentence. Section 4958 provides that at the time fixed, no cause to the contrary being shown, the court must pronounce judgment upon the defendant. But under the provisions of section 4968, as amended by section 1, Ch. 153, L. 1923, the court or a judge thereof, instead of pronouncing sentence, may, in furtherance of justice, suspend sentence of the convicted person during good behavior subject to such conditions as such court or judge may impose. While this last section gives the court wide latitude as to what disposition it will make of a particular case, the import of sections 4847 and 4968 is to require the court to take some action. Section 4947 must be complied with and when the time fixed for pronouncing sentence arrives, the court must either pronounce sentence or suspend sentence, and in the latter case show by order or the minutes of the court what was done and what conditions were imposed. In this case this action would have...