State ex rel. Warner v. Jameson, No. 9706

CourtSupreme Court of South Dakota
Writing for the CourtHANSON
Citation91 N.W.2d 743,77 S.D. 340
Docket NumberNo. 9706
Decision Date08 September 1958
PartiesSTATE of South Dakota ex rel. John Mertz WARNER, Plaintiff and Appellant, v. G. Norton JAMESON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Defendant and Respondent.

Page 743

91 N.W.2d 743
77 S.D. 340
STATE of South Dakota ex rel. John Mertz WARNER, 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. 9706.
Supreme Court of South Dakota.
Sept. 8, 1958.

[77 S.D. 341] Schiager & Schiager, Sioux Falls, for plaintiff and appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., for defendant and respondent.

HANSON, Judge.

On May 17, 1952 petitioner, John Mertz Warner, pleaded guilty to two counts of an information charging indecent molestation of a minor child. The information was filed, and petitioner was arraigned, in the Circuit Court of Codington County. He was sentenced to serve ten years in the state penitentiary on each count, the sentences to run concurrently. He is now serving such sentence.

Petitioner filed an application for a writ of habeas corpus in the Circuit Court of Minnehaha County contending the sentence imposed is void as the court did not advise him of the right to court-appointed counsel and the court did not ask if he desired aid of counsel. The trial court concluded petitioner had waived his right to counsel and entered its order quashing the writ of habeas corpus and [77 S.D. 342] remanding petitioner to the custody of the Warden. Petitioner appeals from this order.

When the accused was arraigned in May 1952 he was twenty-four years of age. He had been employed, and was a resident of Omaha, Nebraska. Although he did not graduate, he had attended school through the twelfth grade. The offense of vagrancy was his only prior crime. He appeared at the arraignment without counsel and indicated a desire to enter a plea of guilty. With reference to right of counsel the record shows the following subsequent proceedings:

'By the Court: Have you had an opportunity to confer with counsel of your own choosing--have you talked with an attorney about the matter?

'By the Defendant: With Mr. Oviatt.

* * *

* * *

'By the Court: You are, in addition, advised that you are entitled to be represented by an attorney at all stages of the case if you so desire; * * * Do you understand these rights?

'By the Defendant: I believe I do, Your Honor.

'By the Court: I must advise you if you desire to enter a plea of guilty you will thereby waive your right to such a trial, and you will thereby waive your right to be confronted by the witnesses or have witnesses in your own behalf, except witnesses as you wish to call in in mitigation of punishment. Do you understand that?

'By the Defendant: I believe I do.

'By the Court: Well what is there about it that you are uncertain about?

'By the Defendant: Nothing I guess.

'By the Court: What I am saying is if you plead guilty these rights would be waived.'

Before a plea was entered the Information was read and accused was informed as to the penalty.

[77 S.D. 343] The right to defend in person and by counsel is guaranteed the accused in all criminal prosecutions by Article VI, Sec. 7 of the South Dakota constitution. Implementing this constitutional guarantee are the following statutory provisions:

'Counsel for defendant before arraignment; * * * If the defendant appears for arraignment without counsel, he must be informed by the...

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6 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
    ...75 S.D. 196, 61 N.W. 2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 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. 63......
  • Nachtigall v. Erickson, No. 10786
    • United States
    • Supreme Court of South Dakota
    • June 16, 1970
    ...rights, Constitution of South Dakota, Art. VI, § 7, where he was not represented by counsel. See also State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d On the other hand, where the accused was represented by counsel in proceedings before a guilty plea was entered and had consulted fre......
  • State ex rel. Stevenson v. Jameson, No. 9823
    • United States
    • Supreme Court of South Dakota
    • June 14, 1960
    ...are cited for these contentions. His argument is based on the statement of this court in State ex rel. Warner v. Jameson, S.D., 91 N.W.2d 743, 745, where quoting from the Oklahoma Criminal Court of Appeals [In re Stevens, 81 Okl.Cr. 65, 160 P.2d 415] we 'The court should not only advise one......
  • People v. Warner, Cr. 19662
    • United States
    • United States State Supreme Court (California)
    • March 1, 1978
    ...had not been informed of his right to court-appointed counsel at trial. (State rel. Warner v. Jameson (S.D.1958) Page 889 [574 P.2d 1241] 77 S.D. 340, 91 N.W.2d 743.) In 1960 defendant was convicted in California of violations of sections 288 and 288a and was confined first at a state hospi......
  • Request a trial to view additional results
6 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
    ...75 S.D. 196, 61 N.W. 2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 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. 63......
  • Nachtigall v. Erickson, No. 10786
    • United States
    • Supreme Court of South Dakota
    • June 16, 1970
    ...rights, Constitution of South Dakota, Art. VI, § 7, where he was not represented by counsel. See also State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d On the other hand, where the accused was represented by counsel in proceedings before a guilty plea was entered and had consulted fre......
  • State ex rel. Stevenson v. Jameson, No. 9823
    • United States
    • Supreme Court of South Dakota
    • June 14, 1960
    ...are cited for these contentions. His argument is based on the statement of this court in State ex rel. Warner v. Jameson, S.D., 91 N.W.2d 743, 745, where quoting from the Oklahoma Criminal Court of Appeals [In re Stevens, 81 Okl.Cr. 65, 160 P.2d 415] we 'The court should not only advise one......
  • People v. Warner, Cr. 19662
    • United States
    • United States State Supreme Court (California)
    • March 1, 1978
    ...had not been informed of his right to court-appointed counsel at trial. (State rel. Warner v. Jameson (S.D.1958) Page 889 [574 P.2d 1241] 77 S.D. 340, 91 N.W.2d 743.) In 1960 defendant was convicted in California of violations of sections 288 and 288a and was confined first at a state hospi......
  • Request a trial to view additional results

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