State ex rel. Henning v. Jameson

Decision Date06 May 1946
Docket Number8826,8837.
Citation22 N.W.2d 731,71 S.D. 144
PartiesSTATE ex rel. HENNING v. JAMESON, Warden (two cases).
CourtSouth Dakota Supreme Court

John R. McDowell, State's Atty., of Sioux Falls, Newton J. Jones, State's Atty. of Britton, George T. Mickelson, Atty. Gen., and E. D. Barron, Asst. Atty. Gen for Jameson.

T R. Johnson and George J. Danforth, both of Sioux Falls, for Henning.


An information was filed in the circuit court of Marshall county charging Carl Henning with the crime of incest. After arraignment on this charge, another information was filed charging him with rape, on the same state of facts. He pleaded guilty to both charges. He was sentenced to ten years on the incest charge and twenty years on the rape charge, the sentences to run consecutively. After serving part of the sentence Henning applied for his discharge on habeas corpus. Judgment was entered in the circuit court discharging the defendant from the custody of the warden of the state penitentiary, but directing that the warden deliver him to the sheriff of Marshall county for further proceedings according to law. Then the State appealed from the orders discharging Henning, and Henning appealed from that part of the orders directing that he be delivered to the custody of the sheriff of Marshall county.

The State claims that the circuit court erred in finding that Henning was not sufficiently advised of his constitutional rights at the time of the arraignment, on either charge.

It appears from the transcript of the arraignment proceedings that Henning was not represented by counsel at the arraignment in either case; that at the arraignments and before entering a plea, the court each time asked the defendant if he had a lawyer, and that each time defendant answered 'I don't need any.' No advice or information was given defendant by the court as to the rights of a person brought before the court for arraignment and plea of guilty on a charge of felony.

Before permitting the entry of such a plea, it is the duty of the court to fully advise the defendant of his rights. These rights are stated in the Constitution of the United States Sixth Amendment, as follows:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defence.'

The Constitution of South Dakota, Art. VI, § 7, states the same rights, adding that the defendant shall have a copy of the information. The personal rights enumerated in these constitutional provisions are fundamental in character, and the failure of the court to protect them in a criminal prosecution is a denial of due process of law. U.S.Const. Fourteenth Amendment, § 1; S.D.Const. Art. VI, § 2; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

All the rights so enumerated may be waived by a plea of guilty. 22 C.J.S., Criminal Law, § 424. Whenever such a plea is entered by a defendant charged with felony, on the advice of his counsel, such a waiver takes place. In that case it is presumed that defendant was informed of his rights by his counsel before the plea was entered, and the advice of the court as to constitutional rights is not necessary. There is, however, no presumption that a defendant charged with felony, not represented by counsel, and not schooled in the law, understands these fundamental rights, and consequently there is no presumption that he has waived them by entering a plea of guilty. On the contrary, the courts indulge every reasonable presumption against such waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.

In this case the transcript of the court proceedings shows that Henning was not represented by counsel; that the court did not advise him of the right to be confronted with the witnesses against him, to compulsory process for the witnesses on his behalf to a speedy public trial by an impartial jury of the county, and the evidence shows that Henning did not sufficiently understand these rights at the time the pleas were entered. The record therefore shows that the circuit court was without jurisdiction to enter the plea of guilty in either case. Johnson v. Zerbst, su...

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