State v. Donaldson

• Decision Date: 15 December 1899
• Parties: STATE v. DONALDSON.
• Court: South Dakota Supreme Court

81 N.W. 299

12 S.D. 259

STATE v. DONALDSON.

Supreme Court of South Dakota

December 15, 1899

Error to circuit court, Yankton county; E. G. Smith, Judge.

David Donaldson was indicted for keeping his saloon open on Sunday. From a judgment overruling his demurrer to the information he brings error. Affirmed.

Robert B. Tripp, for plaintiff in error.

John L Pyle, Atty. Gen., and A. H. Orvis, for the State.

FULLER J.

In the trial court the following demurrer to an information charging plaintiff in error with keeping his saloon open on Sunday, in violation of section 14, c. 72, Laws 1897, was overruled "Now comes the defendant, and demurs to the information for that it appears upon the face thereof: (1) That it does not substantially conform to the requirements of the law relating thereto; (2) that more than one alleged offense is attempted to be charged therein; (3) that the facts stated do not constitute a public offense." Having elected to stand on the demurrer, judgment was entered imposing upon the accused a fine of $50, together with costs, and a forfeiture of his license to sell intoxicating liquors in the county of Yankton from the time when sentenced until the 1st day of July, 1899, and in default of the payment of both fine and costs it was adjudged that he be imprisoned in the county jail one day for every $2 of said fine and costs, or until the same shall be paid in full.

That the information was verified by the state's attorney on information and belief, instead of positively, is the first point urged in support of the proposition that the same "does not substantially conform to the requirements of the law" providing that "all informations shall be verified by the affidavit of the state's attorney informant, or some other person." Section 3, c. 64, Laws 1895. In this state no information can be filed for any offense against any person, not a fugitive from justice, until he has either had or waived a preliminary examination, from which it must appear from competent testimony that a public offense has been committed, and the magistrate must have sufficient cause to believe the defendant guilty thereof. The state's attorney must conduct the examination of witnesses, and is authorized, in the exercise of his discretion, to have the testimony offered at the preliminary hearing written out at the expense of the county in the form of questions and answers, and filed with the papers in the case. Comp. Laws, § 7175; section 8, c. 64, Laws 1895. Moreover, he must inquire into the case fully, and if, from a careful examination of all the facts and circumstances, he should determine that no information ought to be filed, it is his duty to make and present to the trial court an unverified written statement to that effect, giving his reasons therefor, both as to law and fact; and the court, if dissatisfied therewith, has jurisdiction to order such officer to file a proper information, and bring the case to trial. Section 6, c. 64, Laws 1895. The idea of requiring a public officer to swear positively to the existence of facts of which he may have no knowledge other than that of information and belief is clearly at variance with reason and inconsistent with the spirit of criminal law. To prevent groundless or vindictive prosecutions, and not as a matter of evidence, verifications are required; and when a state's attorney, familiar with all the testimony, and acting in good faith upon the line of duty, prepares an information according to the law and facts, the object of the statute is fully met when, in his official capacity, he verifies the same on information and belief. State v. Montgomery, 8 Kan. 351; Washburn v. People, 10 Mich. 372. It is averred "that David Donaldson kept open *** a saloon and bar, of which the said David Donaldson was then and there the owner and proprietor, and the said saloon and bar being then and there a place wherein brewed, malt, and intoxicating liquors were sold and kept for sale." For a reversal it is urged that by the use of the foregoing language ...