State ex rel. Null v. Circuit Court in & for Beadle Cnty.

• Decision Date: 24 October 1905
• Citation: 104 N.W. 1048,20 S.D. 122
• Parties: STATE ex rel. NULL, State's Atty., v. CIRCUIT COURT IN AND FOR BEADLE COUNTY et al.
• Court: South Dakota Supreme Court

20 S.D. 122

104 N.W. 1048

STATE ex rel. NULL, State's Atty.,

v.CIRCUIT COURT IN AND FOR BEADLE COUNTY et al.

Supreme Court of South Dakota.

Oct. 24, 1905.

Original application for mandamus by the state, on relation of T. H. Null, acting state's attorney of Beadle county, to compel the circuit court of such county, presided over by L. E. Gaffy, judge, to establish and authenticate two copies of certain lost or stolen indictments. Writ allowed.

Fuller, P. J., dissenting in part.Philo Hall, Atty. Gen., and T. H. Null, Acting State's Atty., for plaintiff. A. W. Wilmarth, Henry C. Hinckley, and H. S. Mouser, for defendant.

HANEY, J.

This is an original application upon notice for a writ of mandamus commanding the circuit court within and for Beadle county and Hon. Loring E. Gaffy, the presiding judge thereof, to establish and authenticate, by such evidence as the case may afford, true copies of certain lost or stolen indictments, to order such copies filed in lieu of the originals, and to proceed upon such copies as if they were originals. From an agreed statement of facts it appears “that on the 14th day of September, 1905, the state of South Dakota, by Thomas H. Null, acting state's attorney for Beadle county, suggested the loss of purported indictments Nos. 15, 16, 17, 18, and 19, alleged to have been returned by the grand jury of Beadle county against the defendant Charles A. Kelley at the March, 1905, term of said court, and moved upon the affidavits of Asher F. Pay and Thomas H. Null to substitute for said lost indictments copies attached to the affidavit of said Asher F. Pay, being Exhibits D, E, F, G, and H, which are set out in the application for the writ of mandamus in this case, *** in lieu of said original indictments. To which motion the defendant entered the following objection: ‘At this time the defendant objects to the motion made by the state's attorney to substitute the copies of indictments Exhibits D, E, F, G, and H, for the reason that there is no authority under our Constitution or statutory laws for the substitution of any copy of an original indictment, and that there is no authority under the common law for such a proceeding; and we object on the further ground, for the reason that the exhibits offered as copies are not certified or proved to be copies of the original indictments returned by the grand jury against the defendant, and are only shown to be papers delivered by one of the attorneys for the defendant to the clerk of this court on the request that he desired them for the purpose of copying; that the exhibits are copies of papers which are not identified in any way as being copies of the original indictments, or taken from the original indictments, or even taken from certified copies of the original indictments, and there is nothing before the court to identify them as copies of the original indictments, if the court has the power to substitute copies of any indictment; also, that the showing made by the prosecution is not sufficient to sustain the motion that he makes to substitute copies.”’

The reasons assigned by the learned circuit court for its refusal to grant the state's application are thus stated in its return or answer in this proceeding: “In this action it appears that the grand jury for the county of Beadle in the spring of 1905 returned several indictments into court against the defendant, which indictments were filed, and whereupon the defendant filed an affidavit of prejudice against the presiding judge on the several indictments returned; that he was by said judge required to plead; that he demurred to the indictments, which demurrers were overruled by the court, and the defendant entered to each of the indictments a plea of not guilty; that the causes went for trial to the next regular term of the circuit court for that county; that prior to the next term, and after the filing, the indictments were lost or stolen from the records, and they cannot be found; and this is a motion on the part of the state to allow the filing of copies of the indictments and to restore the record. The defendant, appearing personally and by counsel, objects to the filing of copies for several reasons, among others that the grand jury which found the indictments was not legally constituted; second, that the papers offered to be filed by the state are not copies or proven to be copies; third, that there is no statute allowing the restoration of a lost indictment in this state. These are the main objections, as the court understands, made by the defendant to the filing of these proposed copies. In regard to the first objection, that the grand jury was not legally constituted, the court finds absolutely no reason for this contention. In regard to the objection that there is no statute under which these proceedings could be had, while it is not necessary to decide the question in this case, the court is of the opinion that, after an indictment has become a record of the court and is abstracted or lost, the court has the inherent power to restore the record by a proven and certified copy, if such can be obtained. The question in this case is as to the nature of the so-called copies offered by the state in lieu of the lost or abstracted indictments. The court has no power to make an indictment. Granted that the court has the power to order a copy substituted, should it not be such a copy and of such a character that it would preclude any reasonable doubt as to its being a true copy of the criminal indictment? In this case the papers presented are true carbon copies of the body of two indictments entitled in this case. There are no signatures of the officers or names of witnesses. Together with these are presented full copies, or papers which on their face are full copies, of indictments entitled herein. The affidavits show that they were compared from copies of indictments borrowed by the clerk of court from one of the attorneys for the defendant. There is no affidavit that these are true copies of the indictments lost or abstracted. There are affidavits from the state's attorney and clerk of court which state that they believe them to be true copies. There is no affidavit of the person making the copy of which these presented papers are copies as to their being true, and the court is asked, from a search of the records and the recollection of the clerk and state's attorney, and perhaps his own recollection, to formulate, with the help of these tendered copies, an indictment or indictments upon which these causes should be tried. I do not believe the court has power so to do. Whether these indictments were interlined or not could not be ascertained. What were the names of the witnesses would be a matter of proof, as would, in fact, the matter of the contents of the indictments; and in fact the court in this proceeding is asked to practically, from whatever can be ascertained, make new indictments, and, while it is to be regretted that criminal actions can be disposed of in this manner, I do not believe the law would justify the granting of this request, and the motion is denied.”

Every court must have inherent power to protect and preserve its own records; otherwise, it could not perform the functions for which it is created. The indictments in question became public records when filed with the clerk. Rev. Code Cr. Proc. § 217. The government, the defendant, and every inhabitant of the state was concerned in their preservation. When it was suggested that they had been lost or stolen, it was the duty of the court on its own motion, if its inherent power had not been otherwise invoked, to have caused the return of the original documents to their proper custodian, or, failing in this, to have ascertained with reasonable certainty the contents of each, and ordered the filing of copies corresponding in every material respect with the originals. Such we believe to be the power and duty of every court existing by virtue of organic law, with respect to all its records, whether civil or criminal, and that it cannot be deprived of such power or excused from performing such duty by any legislative enactment. It is enough, however, for the purposes of this proceeding, to hold that such power and duty existed independently of statutory authority, where, as in this instance, the accused was furnished with certified copies and entered his plea of not guilty before the indictments were lost or stolen, and in so holding we have the support of abundant authority. State v. Rivers, 58 Iowa, 102, 12 N. W. 117, 43 Am. Rep. 112;State v. Stevisiger, 61 Iowa, 623, 16 N. W. 746;State v....