State v. La Croix

• Decision Date: 07 April 1896
• Citation: 66 N.W. 944,8 S.D. 369
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. JOSEPH LA CROIX, Plaintiff in error.
• Court: South Dakota Supreme Court

8 S.D. 369

66 N.W. 944

STATE OF SOUTH DAKOTA, Defendant in error,

v.

JOSEPH LA CROIX, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Buffalo County, SD Hon. D. Haney, Judge Affirmed C. C. Morrow, F. F. Haskell and James Brown Attorneys for plaintiff in error. Coe I. Crawford, Attorney General H. B. Farren, Buffalo County State’s Attorney Attorneys for defendant in error. Opinion filed April 7, 1896

FULLER, J.

Upon a duly verified information plaintiff in error was prosecuted for and found guilty of the crime of burglary in the third degree, and from a judgment of conviction error is brought to this court for review. Sec. 3, c. 64, Laws 1895, requires that an offense in an information “shall be stated with the same precision and fullness in matters of substance, as is now required in indicting in like cases.” The allegations of the information are conceded to be entirely sufficient, so far as they relate to the party charged and to the particular circumstances of the offense, but counsel for plaintiff in error maintain that there is a failure to charge any offense whatever, in that the degree of burglary is nowhere stated. As the caption and all formal parts of the accusation are omitted from the abstract, which purports to contain only that part of the information which is rightly admitted to be sufficiently “direct, and contains as it regards the particular circumstances of the offense charged,” it might well be presumed, in the absence of anything to the contrary, and in support of the ruling of the court upon a demurrer and motion to set the information aside, that the degree of burglary, the facts constituting which are stated in ordinary and concise language, was stated in the introductory part of the information. In State v. Eno, 8 Minn. 220 (Gil. 190), the court says:

“When the crime has a name, such as treason, murder, arson, manslaughter, larceny, etc., and is susceptible of division into different classes or degrees, it is sufficient to charge the defendant with the crime by name in the accusing part of the indictment, and describe the particular degree or class of the offense in the specifications.”

As no question is raised as to the formal averments, none of which appear in the abstract, and it being admitted that the particular circumstances of the offense charged are sufficiently stated, it must, of necessity, follow that the information is direct and certain as to the offense charged.

“Every person who breaks and enters, in the daytime or in the nighttime, … any building, or any part of any building, booth, tent, railroad car, vessel, or other obstruction or erection in which any property is kept, with intent to steal therein, or to commit any felony, is guilty of burglary in the third degree.”

Sec. 6741, Comp.

Laws. The information charged:

“That Joseph La Croix, on September 28, 1895, with force and arms, about the hour of twelve o’clock in the nighttime, at the town of Gann Valley, in the county aforesaid, the store building of William J. Hughes and Henry Slechta, partners doing business in the firm name and style of Hughes & Slechta, there situate, unlawfully, feloniously, and burglariously did break and enter, with intent the goods, chattels and personal property of the said Hughes and the said Slechta, in said store building, then and there being kept, then and there unlawfully, feloniously, and burglariously to steal, take by stealth, and carry away, with intent to deprive the aforesaid owners thereof.”

Sec. 7249 of the Compiled Laws is as follows:

“The indictment is sufficient if it can be understood therefrom:

…

(6) That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.

(7) That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Under the statute the facts constituting a public offense are charged in ordinary and concise language, so that a person of common understanding may know that the crime described is burglary in the third degree, and, as the information is therefore sufficient, the demurrer was properly overruled.

Section 8 of Chapter 64 of the Laws of 1895 provides that:

“No information shall be filed against any person for any offense until such person shall have had a preliminary examination thereof as provided by law before a justice of the peace or other examining magistrate or officer, unless such person shall waive such right; provided however, that information may be filed without such examinations against fugitives from justice.”

Under the rule by which presumptions are entertained in support of judicial proceedings, in the absence of evidence or anything to the contrary, it will be presumed in favor of an order of the trial court overruling an...