State ex rel. Stevenson v. Jameson, No. 9823

CourtSupreme Court of South Dakota
Writing for the CourtBIEGELMEIER
Citation104 N.W.2d 45,78 S.D. 431
PartiesSTATE of South Dakota ex rel. Thomas STEVENSON, Plaintiff and Appellant, v. G. Norton JAMESON, as the duly appointed, qualified and Acting Warden of the South Dakota State Penitentiary, Defendant and Respondent.
Docket NumberNo. 9823
Decision Date14 June 1960

Page 45

104 N.W.2d 45
78 S.D. 431
STATE of South Dakota ex rel. Thomas STEVENSON, Plaintiff
and Appellant,
v.
G. Norton JAMESON, as the duly appointed, qualified and
Acting Warden of the South Dakota State
Penitentiary, Defendant and Respondent.
No. 9823.
Supreme Court of South Dakota.
June 14, 1960.

Page 47

[78 S.D. 433] Woods, Fuller, Shultz & Smith and Travis H. Lewin, Sioux Falls, for plaintiff and appellant.

Parnell Donohue, Atty. Gen., Charles Poches, Jr., Walter Weygint, Asst. Attys. Gen., for defendant and respondent.

BIEGELMEIER, Judge.

On July 28, 1958, Thomas Stevenson, who will be referred to as defendant, and a friend stopped at Lemmon, South Dakota, in an effort to obtain employment at a carnival appearing there. Defendant, a 49-year-old mechanic by trade, had worked for General Motors for eleven years and for two railroads; he last worked in Ohio. Shortly after their arrival, it is claimed that defendant committed acts amounting to indecent molestation of children under the age of fifteen, which SDC Supp. 13.1727, as amended by Ch. 27, Session Laws of 1955, defines as a felony. Defendant was arrested and brought before a justice of the peace on that day on a complaint in two counts charging these acts were committed on two girls eight and nine [78 S.D. 434] years of age. Defendant's rights were fully explained to him and he stated he understood them and asked for a preliminary hearing. SDC 34.14. This was held on August 1, 1958, at which time a further complaint was filed alleging the same offense as to another nine-year-old girl. After the hearing before a justice of the peace, sitting as a committing magistrate (SDC 34.1302) defendant was held to answer the offenses charged in the Circuit Court of Perkins County. Having indicated a desire to enter his plea of guilty thereto, SDC 34.2301, an information was filed in the circuit court charging the defendant with these crimes in three counts and on August 4 he entered pleas of guilty to each count. Sentence was deferred until August 6 when a presentencing investigation or hearing was held by the circuit judge after which sentence was again deferred to August 14 when defendant was sentenced to the state penitentiary for ten years on each count, the sentences to run concurrently. Defendant made application for a writ of habeas corpus in the Circuit Court of Minnehaha County; at that hearing the circuit court entered findings of fact, conclusions of law and a judgment quashing the writ and remanding the defendant to the custody of the warden of the penitentiary from which judgment defendant appeals.

As provided by law, counsel was appointed to appear for him in the Minnehaha County Circuit Court and this court and their fees, together with the expenses of the various transcripts and other costs, have been or are to be paid out of public funds. Other facts and the record will be referred to as they apply to the assignments of error and questions raised on this appeal.

Point I. Did the Minnehaha County Circuit Court err in finding that the justice of the peace and Perkins County Circuit Court informed defendant of the nature of the charges against him? We first examine the justice of the peace proceeding.

SDC 34.1401 provides in part:

[78 S.D. 435] 'When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings and also of his right to waive an examination before any further proceedings are had.'

Appellant's brief claims that the justice of the peace did not specifically inform defendant that he was facing charges of indecent molestation. The transcript made by the reporter at the preliminary hearing showed that defendant received a copy of the complaint charging the two offenses on the day he was arrested and brought before the justice; that four days later

Page 48

at the commencement of the preliminary hearing the state's attorney gave defendant another copy of that complaint and also a copy of the further complaint alleging the third offense. These complaints were each titled 'Complaint for Indecent Molestation' and each of the counts set out nearly word for word the offense in the words of Ch. 27, Laws of 1955, including in each count the name and age of the child involved. The transcript of that hearing consists of 68 typed pages; the three children alleged to have been so molested by defendant testified and defendant cross-examined one of them as to what occurred during which he stated to her that it could have been 'the other fellow * * * on those carnival grounds'. At the time defendant enterred his pleas of guilty in circuit court three days later he was given a copy of the state's attorney's information repeating the counts and, after a colloquy between defendant and the circuit judge, he was asked if he understood what he was charged with and he answered 'Yes, sir.' Defendant's reply brief states he 'does not contend that he did not receive a copy of the Complaint; that the offense was not sufficiently set forth in the Complaint; or that he was not faced by State witnesses. What appellant does contend is that there was a 'failure to observe that fundamental fairness essential to the very [78 S.D. 436] concept of justice.'' Limiting our discussion thus far to the governing statute, we conclude that defendant was informed of the charge against him by the committing magistrate as required by SDC 34.1401 and the trial judge properly refused the proposed finding of fact that he was not so informed.

Defendant's claim that he was not informed of the nature of the charges when he appeared before the Circuit Judge of Perkins County is to be measured by another yardstick, that of Art. VI, § 7 of our Constitution. This section provides:

'In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, * * *.'

The 14-page transcript of the proceedings in circuit court when defendant entered his guilty pleas shows the judge explained the offense he was charged with, that defendant was given a copy of the state's attorney's information, that it was read aloud to him, and he was instructed to follow along his copy when it was read to him, that he said he understood what he was charged with and he entered three separate pleas of guilty to the offenses charged. While defendant testified at the habeas corpus hearing that he did not understand the nature...

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12 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440......
  • Blake v. State, No. 40665
    • United States
    • United States Court of Appeals (Georgia)
    • April 15, 1964
    ...776, 777 (8th Cir.1963); United States ex rel. Rogers v. Cummings, 154 F.Supp. 663, 666 (D.Conn.1956); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45, 50; State of Utah v. Sullivan, 227 F.2d 511, 514 (10th Cir.1955), cert denied, 350 U.S. 973; Webster v. State, Fla.App., 156......
  • State v. Heisinger, Nos. 11967
    • United States
    • Supreme Court of South Dakota
    • January 6, 1977
    ...and whether there is sufficient cause to believe that the accused committed it. SDCL 23-27-16; State, ex rel. Stevenson v. Jameson, 1960, 78 S.D. 431, 104 N.W.2d 45. No verdict can flow from the magistrate's determination, and a dismissal of the complaint or preliminary information is no ba......
  • Pearce v. Cox, No. 8142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 22, 1965
    ...U.S. 640, 649, 68 S.Ct. 763, 92 L.Ed. 986; Silva v. Cox, supra; Hebert v. State of Louisiana, supra; State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W. 2d 45, 49. 8 State v. Badders, 141 Kan. 683, 42 P.2d 943, 945; State v. Hackney, 240 N.C. 230, 81 S.E.2d 778, 783; State v. Smith, 3......
  • Request a trial to view additional results
12 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440......
  • Blake v. State, No. 40665
    • United States
    • United States Court of Appeals (Georgia)
    • April 15, 1964
    ...776, 777 (8th Cir.1963); United States ex rel. Rogers v. Cummings, 154 F.Supp. 663, 666 (D.Conn.1956); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45, 50; State of Utah v. Sullivan, 227 F.2d 511, 514 (10th Cir.1955), cert denied, 350 U.S. 973; Webster v. State, Fla.App., 156......
  • State v. Heisinger, Nos. 11967
    • United States
    • Supreme Court of South Dakota
    • January 6, 1977
    ...and whether there is sufficient cause to believe that the accused committed it. SDCL 23-27-16; State, ex rel. Stevenson v. Jameson, 1960, 78 S.D. 431, 104 N.W.2d 45. No verdict can flow from the magistrate's determination, and a dismissal of the complaint or preliminary information is no ba......
  • Pearce v. Cox, No. 8142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 22, 1965
    ...U.S. 640, 649, 68 S.Ct. 763, 92 L.Ed. 986; Silva v. Cox, supra; Hebert v. State of Louisiana, supra; State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W. 2d 45, 49. 8 State v. Badders, 141 Kan. 683, 42 P.2d 943, 945; State v. Hackney, 240 N.C. 230, 81 S.E.2d 778, 783; State v. Smith, 3......
  • Request a trial to view additional results

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