State v. Circuit Court

Citation69 S.D. 454,11 N.W.2d 659
Decision Date27 October 1943
Docket Number8677
PartiesSTATE OF SOUTH DAKOTA, ex rel. CLARENCE E. ENGEBRITSON, v. CIRCUIT COURT FOR GRANT AND DAY COUNTIES,
CourtSupreme Court of South Dakota
Original Proceeding

#8677—Judgment annulled

T. R. Johnson, Sioux Falls, SD

Attorney for Plaintiff

George T. Mickelson, Attorney General

E. D. Barron, Ass’t. Attorney General, Pierre, SD

Frank S. Tait, Milbank, SD

Attorneys for Defendant

Opinion filed Oct 27, 1943

RUDOLPH, J.

The petitioner, Clarence Engebritson, was charged in the circuit court of Grant County with the crime of perjury. The information, omitting caption and formal parts, is as follows:

“That at said time and place the said Clarence Engebritson, did knowingly, unlawfully, willfully and feloniously, and after having taken an oath that he would testify to the truth and truly before the circuit court within and for Grant County, South Dakota, in an action entitled State of South Dakota v. Clarence Engebritson, Defendant, the same being a criminal action in which said oath was administered; testified as follows: ‘Q. Are you a married man? A. Yes, I am. Q. Is that your wife and child and mother sitting here? (pointing to two ladies and a baby). A. Yes. Q. And they live over in Day County? A. Yes, they do.’ the same being a material matter to build up and sustain the character and standing of the defendant and witness on his own behalf on that trial; the same being false and known to him to be false in that one of the ladies was his mother and the other was Roma Leegaard, NOT the wife of the witness and defendant, but a lady by whom he, said witness had had an illegitimate child, and said defendant and witness was not then a married man, but so stated to deceive the jury and court.”

To this information the defendant pleaded guilty and thereupon he was sentenced by the circuit court of Grant County to a term of ten years in the State Penitentiary. The present proceeding is an original proceeding in this court in certiorari wherein the petitioner asserts that the judgment and sentence of the court is void and seeks to have them set aside. The defendant is now serving a concededly valid sentence of three years in the penitentiary and would not, therefore, be entitled to release by habeas corpus even were it determined that the ten-year sentence, about which petitioner complains, is invalid. For this reason the court has felt that interests of justice require that, it entertain jurisdiction of this original proceeding in certiorari and thereby consider petitioner’s contention that the judgment and sentence of the court are void.

The proceeding being in certiorari, the scope of review of this court is, of course, limited. SDC 37.0401 provides:

“A writ of certiorari may be granted by the Supreme and Circuit Courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.”

The extent of review upon certiorari is prescribed by SDC 37.0407 as follows: “The review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board, or officer, has regularly pursued the authority of such court, tribunal, board, or officer.”

No contention is here raised that the circuit court in sentencing the defendant had failed to acquire jurisdiction of defendant’s person nor is it contended that the court was without jurisdiction of the subject matter. Petitioner’s contention in substance is that the circuit court of Grant County was without authority to render judgment under this information purporting to charge petitioner with the crime. In support of his position, petitioner contends that the information fails to state a public offense in that an essential element of the crime of perjury is the materiality of the false testimony and it is contended the information shows that the false testimony was not material to the question at issue in the trial where the false testimony was given.

The first question presented by petitioner’s contention is the extent of this court’s power in certiorari to review a judgment in a criminal case. It is clear that the court is without power to examine evidence for the purpose of determining whether it supports a conviction, at least without a showing of fraud, or willful and arbitrary disregard of undisputed and indisputable proof wherein credibility of witnesses is not involved. State ex rel. Grey v. Circuit Court of Minnehaha County, 58 SD 152, 235 NW 509. However, the fact is conceded in this record that the charge involved in the trial at which the perjured testimony is alleged to have been given was a charge of obtaining property by means of false pretenses by issuing a check without having funds in the bank upon which the check was drawn. We are, therefore, of the opinion, that we are privileged to consider the information upon which the perjury conviction is based in the light of this conceded fact.

While this proceeding is in certiorari, we believe the scope of our review is the same as the review in habeas corpus when it is sought in such proceeding to inquire into an imprisonment resulting from a judicial proceeding. The inquiry in habeas corpus under such conditions is limited, as our inquiry in certiorari is limited, to questions affecting the jurisdiction of the court which caused the imprisonment. SDC 37.5504. In habeas corpus it is generally held that the court may consider the information upon which the conviction is based, and determine whether the information states any crime known to the law. As stated in the Annotation to Ex parte Jarvis, 57 ALR 85:

“The rationale of...

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14 cases
  • State v. French
    • United States
    • South Dakota Supreme Court
    • September 3, 1993
    ...509 N.W.2d 698 ... STATE of South Dakota, Plaintiff and Appellee, ... Norman Eugene FRENCH, Defendant and Appellant ... No. 18240 ... Supreme Court of South Dakota ... Considered on Briefs on Sept. 3, 1993 ... Decided Dec. 22, 1993 ...         Mark Barnett, Atty. Gen., Joan Boos ... Circuit Court, 69 S.D. 454, 459, 11 N.W.2d 659, 661 (1943). Citing the various constitutional and statutory provisions guaranteeing his right to trial by ... ...
  • Sazama v. State ex rel. Muilenberg
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    • South Dakota Supreme Court
    • February 21, 2007
    ... ... STATE of South Dakota, ex rel., Dawn MUILENBERG, Defendant, Petitioner and Appellee ... No. 23959 ... Supreme Court of South Dakota ... Considered on Briefs August 28, 2006 ... Decided February 21, 2007 ... [729 N.W.2d 338] ...         Thomas E ...         [¶ 7.] The circuit court found Sazama was aware of the child support order, failed to comply with the order, and had no legal excuse for non-compliance. It also found ... ...
  • Waltman v. Austin
    • United States
    • North Dakota Supreme Court
    • May 11, 1966
    ... ... Thomas J. WALTMAN, Petitioner, ... W. J. AUSTIN, Judge of the Burleigh County Court With ... Increased Jurisdiction, Respondent ... Cr. 338 ... Supreme Court of North Dakota ... Section 12--51--07, N.D.C.C., as amended, permits commitment of law violators to the state farm in certain instances and is not an alternative penalty statute prescribing limits of ... 62, 82 N.W. 398, 399, as cited in State ex rel. Engerbritson v. Circuit Court for Grand and Day Counties, 69 S.D. 454, ... Page 521 ... 11 N.W.2d 659, at p. 661, 150 ... ...
  • State v. Swisher
    • United States
    • Missouri Supreme Court
    • July 13, 1953
    ...260 S.W.2d 6 ... 364 Mo. 157 ... No. 43257 ... Supreme Court of Missouri, en Banc ... July 13, 1953 ...         Hobson Hoar, Melvin J. Duvall, St. Joseph (Henry R. Gannan, St. Joseph, on the brief), ... 92, 165 N.Y.S. 65, 69; State v. Hall, 88 Mont. 297, 292 P. 734, 735 ...         [364 Mo. 165] In the case of State v. Circuit Court for Grant and Day Counties, 69 S.D. 454, 11 N.W.2d 659, 661, 150 A.L.R. 739, it was held that a defendant's false testimony, that he was ... ...
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