State ex rel. Poach v. Sly

• Decision Date: 08 November 1934
• Docket Number: 7766.
• Citation: 257 N.W. 113,63 S.D. 162
• Parties: STATE ex rel. POACH v. SLY, Sheriff.
• Court: South Dakota Supreme Court

257 N.W. 113

63 S.D. 162

STATE ex rel. POACH v. SLY, Sheriff.

No. 7766.

Supreme Court of South Dakota

November 8, 1934

Original proceeding by the State, on the relation of George Poach against E. P. Sly, sheriff of Clark county, S. D., in which an order to show cause was made why a writ of habeas corpus should not issue.

Order vacated and no writ issued.

Dunham & Dunham, of Clark, for plaintiff.

Benj. D. Mintener, Asst. Atty. Gen., and Sterling H. Clark State's Atty., of Clark, for defendant.

CAMPBELL Judge.

On June 17, 1934, fire occurred in the house and garage of the residence property occupied by relator in the town of Carpenter in Clark county, S. D., which property was insured and actually owned by relator though legal title thereto was in the name of his wife. During and after the course of the fire the finding of kerosene-soaked material in the attic of the house and elsewhere created suspicion that the fire was of incendiary origin and that the crime of arson had been committed. A deputy state fire marshal came to the scene made a number of inquiries, and presently requested the state's attorney of Clark county to conduct an investigation of the matter in aid of prosecution (commonly known as a "John Doe proceeding") under the provisions of section 4504, R. C. 1919, as amended by chapter 105, Laws 1929. This, on June 19, 1934, the state's attorney proceeded to do and in the course of the John Doe hearing relator was subpoenaed to attend as a witness and was interrogated at length before the magistrate. Relator was subsequently arrested and charged with the crime of arson in connection with the fire of June 17. He waived preliminary hearing and was bound over to the circuit court for trial; his bail being fixed in the sum of $2,000. On September 24, 1934, an information was filed against him in the circuit court upon the arson charge which he had been held to answer. Promptly thereafter he made a motion to quash said information. It was the contention of relator upon the motion to quash (and is his contention here) that at the time of the John Doe hearing on June 19 relator and no one else was suspected of having set the fire in question or procured it to be set; that in truth and in fact the statutory proceeding of June 19, though entitled "State of South Dakota v. John Doe and Richard Roe," was neither more nor less than an investigation by the prosecuting officer before a magistrate with power of subpoena into the guilt or innocence of relator with reference to the crime of arson; that his constitutional rights were violated by being subpoenaed to testify and being interrogated in said proceeding; and, the subsequent circuit court information against him being for the very crime whereof he was suspected and with reference to which his guilt or innocence was being investigated in the statutory proceeding, that he was entitled to have the information quashed upon the principles enunciated by this court in the case of State v. Smith (1929) 56 S.D. 238, 228 N.W. 240. The motion to quash was denied in the circuit court and relator, continuing in the custody of the sheriff of Clark county in default of bail, has procured from this court an order to show cause why a writ of habeas corpus should not issue in his behalf.

The matter came on for hearing in due course upon the return day fixed in the show cause order and, having been orally argued and briefs having been filed, is now for our disposition.

Our first inquiry is naturally addressed to the question of whether or not habeas corpus is available to relator in seeking the determination of his contentions by this court. Clearly, habeas corpus is not the remedy where a court merely makes a wrong decision; it cannot be availed of to review claimed error where the action of the court alleged to be erroneous is not beyond or in excess of its jurisdiction. State v. Pratt (1906) 20 S.D. 440, 107 N.W. 538, 11 Ann. Cas. 1049. If relator should hereafter be tried and convicted on the circuit court information now pending, he could review upon appeal from such conviction the error which he claims arises from the denial of his motion to quash the information. In a sense, however, the error claimed, under the circumstances of this case, appears really to be jurisdictional. It is the contention of relator that, having been unconstitutionally interrogated at a time when he was definitely suspected of a crime though not yet charged therewith, he cannot lawfully be tried or convicted by any court upon an information subsequently filed (and in a sense resulting from his improper interrogation) charging him with such crime. The situation is analogous in some respects to prosecution under a statute or ordinance claimed to be unconstitutional, in which case this court has held that habeas corpus would lie. Wangsness v. McAlpine (1924) 47 S.D. 472, 199 N.W. 478. It is perhaps more closely analogous to the cases where there is a claim of privilege or immunity from arrest and in such cases the clear weight of authority supports the rule that habeas corpus will lie. Squires' Case (1861) 12 Abb. Prac. (N. Y.) 38; Thompson's Case (1877) 122 Mass. 428, 23 Am. Rep. 370; In re McMicken (1888) 39 Kan. 406, 18 P. 473; Re Robinson (1890) 29 Neb. 135, 45 N.W. 267, 8 L. R. A. 398, 26 Am. St. Rep. 378; Reed v. State (1912) 103 Ark. 391, 147 S.W. 76, Ann. Cas. 1914B, 811. Relator is in jail, unable to make bond. He claims to have a constitutional right not to be prosecuted under the pending information which raises a question jurisdictional in essence. If his contention is correct, it seems hardly just that he should be compelled to remain incarcerated for an indefinite period, undergo trial, and, if convicted, appeal before he is afforded an opportunity to establish it. While the question is perhaps rather close, we are of the view that the case is a proper one for habeas corpus.

Since the present proceeding is merely upon the return of an order to show cause why a writ of habeas corpus should not issue, it is probable that the question above decided, strictly and technically speaking, is the only one before us. However, defendant in his return and all parties in their arguments and briefs have treated the matter exactly as though the writ had already issued and have fully submitted the merits. It would be quite pointless now to issue the writ, necessitate the expense of bringing the sheriff and relator personally before us, and then listen to a repetition of the arguments. We will therefore treat the matter for the purposes of this opinion as the parties themselves have treated it and dispose of it in like fashion as though the writ had issued instead of the show cause order only.

Coming then to the merits, it will be convenient first to consider applicable legal principles. These are not difficult either of discovery or statement and have been expounded at some length and with some care in State v. Smith (1929) 56 S.D. 238, 228 N.W. 240, 246, hereinbefore referred to and upon which relator much relies. The Fifth Amendment to the Constitution of the United States provides that "no person * * * shall be compelled in any criminal case to be a witness against himself, * * *" and section 9 of article 6 of the Constitution of South Dakota (emphasized by section 4879, R. C. 1919, to the effect that "* * * the person charged shall, at his own request but not otherwise, be a competent witness * * *") provides that "no person shall be compelled in any criminal case to give evidence against himself. * * *" These provisions embed in our Constitution a fundamental principle which, as a matter of comparative jurisprudence, is probably the most outstanding single distinguishing characteristic of our criminal law; namely, that legal proceedings to detect and punish crime shall not be inquisitorial. It is undoubtedly true that these and some other analogous constitutional provisions had their origin at a time when there was more danger that innocent citizens and subjects might be harassed and persecuted by abuse of power in the hands of authority than there was that highly organized and well-paid crime might prey unchecked upon society. Perhaps the converse is true today. Perhaps the efficient administration of justice is unduly hampered and restricted by the constitutional safeguards afforded to the accused. Perhaps by reason of those constitutional safeguards the detection and punishment of crime is rendered more difficult than it should be and the guilty too often escape. Perhaps in the present day and age social justice in the broad sense would be better accomplished and the needs of organized society would be better served if we had in this country the system prevalent upon the continent, where, as in France, the person suspected or accused of crime can be and is subjected, regardless of his wishes, to the most thorough, searching, and severe judicial examination and interrogation at all stages of the proceedings, from the moment the accusation against him is made until the completion of his trial. But if such a change in the organic structure and underlying theory of our system of criminal law is to be made, it must be made by the people by constitutional amendment, and, until the Constitutions are changed, it cannot and must not be made by legislative enactment or judicial interpretation. Under our constitutional provisions, any person testifying anywhere, at any time, in any proceeding, is exempt from answering questions or furnishing testimony which would tend to incriminate him save only in cases where immunity is validly granted to persons so testifying. With reference to the person charged with crime, however, as pointed out in the Smith Case, he is not only exempt from answering incriminating...