State v. Anderson, 7444

• Decision Date: 08 September 1932
• Docket Number: 7444
• Citation: 60 S.D. 187,244 N.W. 119
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. VERNON ANDERSON, Appellant.
• Court: South Dakota Supreme Court

60 S.D. 187

244 N.W. 119

STATE OF SOUTH DAKOTA, Respondent, v. VERNON ANDERSON,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Hyde County, SD

Hon. John F. Hughes, Judge

#7444—Reversed

T.H. Luby, George E. Longstaff, Huron, SD

Attorneys for Appellant.

M.Q. Sharpe, Attorney General, Pierre, SD

Fred R. Winans, State’s Attorney, Highmore, SD

Herman L. Bodle, Assistant Attorney General, Pierre, SD

Attorneys for the State.

Opinion Filed Sep 8, 1932

CAMPBELL, Presiding Judge.

A preliminary information (section 4525, RC 1919) was presented to a magistrate, charging defendant with having committed the offense of grand larceny. Pursuant thereto, a warrant was issued, the defendant arrested and brought before a magistrate, and a preliminary examination held, at which considerable testimony was taken. At the conclusion of said preliminary examination the committing magistrate made an order wherein he recited that it appeared to him that the offense of receiving stolen property had been committed, that there was sufficient cause to believe the defendant guilty thereof, and ordered that the defendant be held to answer the same. Pursuant to section 4582, RC 1919, the committing magistrate made return to the circuit court of Hyde County that he had held the defendant to answer in said court to the charge of receiving stolen property. Upon being so held to answer, bail was fixed and furnished by the defendant. At the next term of circuit court in Hyde County defendant appeared pursuant to his undertaking and was informed against by the state’s attorney of Hyde County, not for the offense of receiving stolen property, but for the offense of grand larceny. Before pleading to the information, defendant moved to quash and set aside the same upon the ground that he had not had a preliminary examination on the charge in question prior to the filing of the information, and had not been held to answer to a charge of grand larceny. Section 4762, RC 1919. The motion to quash was denied. A demurrer interposed by the defendant was overruled, and upon his plea of not guilty he went to trial, was convicted by a verdict of the jury, and sentenced to five years in the penitentiary, from which judgment and from a denial of his application for new trial defendant has now appealed.

Appellant urges that, not having been committed or held to answer in the circuit court upon a charge of grand larceny by the magistrate, no information upon that charge could lawfully be filed against him in the circuit court. The state maintains that, inasmuch as the preliminary complaint filed with the magistrate charged the offense of grand larceny, appellant did in fact have a preliminary examination on that offense and consequently may be informed against therefor regardless of the outcome of such preliminary examination. The state takes the broad position that the only prerequisite to the filing of an information is the holding or conducting of a preliminary examination, and that the outcome thereof is entirely immaterial, save only as it may have to do with the custody of the defendant in the interim between the examination and the filing of the information. The position of the state, if we understand it correctly, may be illustrated thus: If defendant has a preliminary examination on a charge of grand larceny and, as a result thereof, is held to answer in the circuit court to the charge of grand larceny, an information for grand larceny may be filed in the circuit court, and in the meantime defendant must rest in custody unless he furnishes bail. On the other hand, if at the end of the preliminary examination, the committing magistrate is of the opinion that there is no sufficient cause to believe the defendant guilty and orders him discharged, he may nevertheless, as a result of such preliminary examination, be informed against for grand larceny at the next term of the circuit court; the only difference being that in the interim he cannot be held in custody or required to furnish bail. And the state further contends that where, as here, the preliminary information is for grand larceny, and the holding to answer is not for grand larceny but for the distinct offense of receiving stolen property, the state’s attorney may entirely disregard the holding to answer upon the offense of receiving stolen property and may file an information for grand larceny, the charge laid before the committing magistrate and upon which charge the preliminary examination was in a sense held in spite of the fact that defendant was not bound over or committed upon that charge.

The preliminary examination by a committing magistrate of a person accused of crime, as a result of which the accused should either be discharged or held to answer, has been known to our law ever since our First Territorial Code of Criminal Procedure, ch. 1, Laws Dakota 1868-69. In fact, the provisions of our law with reference to preliminary examination before a magistrate and the conduct and determination thereof have not changed appreciably since 1868. The purpose (or at least one of the purposes) of the preliminary examination and holding to answer is fundamentally the same as that which underlies the requirement of indictment by a grand jury before trial, which has been well stated by Mr. Justice Field (30 Fed. Cas. No. 18, 255, 2 Sawy. 667) to be intended “as a means of protecting the citizen against unfounded accusation, whether it come from government or be prompted by partisan passion or private enmity.” It is of the spirit of our law that no man should be put to his defense upon a criminal charge or compelled to proceed to trial until it has been determined that there is good and substantial reason for his accusation. Part of the machinery adapted to accomplish that end is the requirement of a preliminary hearing before a committing magistrate and a determination by the magistrate that there is at least some probable or sufficient cause to believe the accused guilty of an offense. Under our first Code of Criminal Procedure, felonies could be prosecuted only upon indictment of a grand jury. Misdemeanors might be prosecuted upon information filed by the state’s attorney, subject to the condition that even in misdemeanor cases the defendant might elect to have the matter submitted to a grand jury. But it was specifically provided (section 210, ch. 1, Laws 1868-69) that the grand jury might indict “where the defendant has been held by a magistrate to answer the charge, and in no other case,” and (section 261, ch. 1, Laws 1868-69) that the information in a misdemeanor case might be filed “whenever upon any preliminary examination, the defendant shall be committed or recognized by any magistrate to appear at the next term of the district court to answer. ...” By the Code of ‘Criminal Procedure adopted by the Eleventh Session of the Territorial Legislature (chapter 35, Laws Dak. 1874-75), prosecution by information in misdemeanor cases (where defendant did not elect submission to a grand jury) was entirely done away with, and all prosecutions of felonies or misdemeanors except proceedings for the removal of civil officers, offenses arising in the militia, and offenses triable in justice and police court, were required to be prosecuted by indictment. The machinery for the filing of sworn complaint, arrest, examination by committing magistrate, and discharge or holding to answer was retained without substantial change, but provision was made that a grand jury might indict in cases where there had not previously been an arrest, examination, and commitment. The law continued thus without substantial change through the Revised Code of 1877 and the Compiled Laws of 1887 and until the legislative session of 1895, when the Legislature provided for the prosecution of all offenses upon information, and, in substance, did away with the grand jury, excepting when the drawing thereof was specifically directed by the judge upon petition of the state’s attorney. Chapter 64, Laws S. Dak. 1895. Our law upon these points has continued without substantial change to the present time, and relevant portions thereof may be quoted as follows from the Revised Code of 1919:

“§ 4528. Magistrate to Issue Warrant. When a preliminary information, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense charged has been committed, and that there is a reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”

“§ 4568. Duty of Magistrate. 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.”

Ҥ 4579. Defendant Discharged, When. After hearing the evidence and the statement of the defendant, if he has made one, if it appears either that a public offense has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an indorsement on the preliminary information over his signature to the following effect:

“There being no sufficient cause to believe the within named A.B. guilty of the offense within mentioned, I order him to be discharged.”

Ҥ 4581. Defendant Held to Answer. If, however, it appears from the examination that a public offense has been committed and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, indorse on or attach to the preliminary information an order signed by him, to the following effect:

“It appearing to me that the offense in the within information mentioned (or...