State v. Egan

• Decision Date: 30 June 1921
• Docket Number: 4846
• Citation: 44 S.D. 273,183 N.W. 652
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE W. EGAN, Defendant and appellant.
• Court: South Dakota Supreme Court

44 S.D. 273

183 N.W. 652

STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE W. EGAN,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Frank B. Smith, Judge

#4846--Reversed

Jones, Muller & Conway, Bailey & Voorhees

Attorneys for Appellant.

Byron S. Payne, Attorney General

Vernon R. Sickel, Assistant Attorney General

L. E. Waggoner

Attorneys for Respondent.

Opinion filed June 30, 1921

WHITING, J.

Section 4271, R. C. 1919, is as follows:

"Sec. 4271. Every person who presents or causes to be presented any false or fraudulent claim, or any proof in support of any such claim, upon any contract of insurance for the payment of any loss, or who prepares, makes or subscribes any account, certificate, survey, affidavit, proof of loss, or other book, paper or writing with intent to present or use the same, or to allow it to be presented or used in support of any such claim, is punishable by imprisonment in the state penitentiary not exceeding three years, or by a fine not exceeding one thousand dollars, or both."

Defendant was informed against under this section, and charged with presenting false and fraudulent proofs in support of a claim for loss under a contract of insurance; and he now appeals from a judgment of conviction and from an order denying a new trial. He has failed to assign as error the denial of a new trial; therefore the questions before us are such as arise because of the appeal from the judgment.

Appellant contends that the information herein stated no public offense, and that the trial court was without jurisdiction. As the basis for a right to now present these contentions, he relies upon the following: That he objected to the introduction of any evidence, basing such objection upon the ground that the information did not state facts sufficient to constitute an offense under the laws of this state; that he moved for a direction of verdict upon the same ground; and that he moved in arrest of judgment upon both of the above mentioned grounds.

Section 4771, R. C. 1919, provides the grounds upon which a demurrer to an information may be based; and section 4779 provides that, when the objections mentioned in section 4771 appear on the face of the information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the information, or that it does not describe a public offense may be taken at the trial under a plea of "not guilty" and in arrest of judgment. It follows, therefore, that, even though there was no demurrer interposed to the information, yet if it appears on the face of such information that the same does not state facts sufficient to constitute a criminal offense, or if it appears on the face of such information that the trial court did not have jurisdiction over the subject of the information, there was reversible error in the rulings of the court. The sole basis of appellant's contention is the failure of the information to specifically set forth the venue of the alleged offense. No claim is made but that, if the venue had been clearly stated, the information would have stated facts sufficient to constitute a public offense. Inasmuch as the place of the alleged offense in no manner constituted an element of such offense, it is apparent that there is no merit whatsoever to the claim that the information did not state facts constituting a public offense. If the information had expressly placed the venue of the offense in some county other than that where the information was filed, it would have then "appeared on the face of the information" that the trial court did not have jurisdiction of the cause. But there is a wide distinction between an information which shows on its face that a court has not jurisdiction of the particular cause, and an information which fails to show that the court has jurisdiction of such cause—it does not appear on the face of this information that the trial court did not have jurisdiction. Except where the place of an alleged offense is a material element of the offense, an information setting forth such offense can, because of an omission to allege the place thereof, be attacked by demurrer only; and so attacked because it did not conform to the requirement of section 4725, R. C. 1919, that an information should disclose, "that the offense charged was committed within the jurisdiction of the court, or though without the jurisdiction of the court, is triable" in that particular court. If such a demurrer had been interposed, the defect could have been remedied by a new information supplying the omitted allegation; while those defects which, under section 4779, may be relied upon under a plea of "not guilty" and in arrest of judgment are defects which present facts fatal, the one, to a claim of guilt, the other, to the right of the court to exercise jurisdiction.

The defendant took the witness stand and, by so doing, rendered himself subject to impeachment exactly as any other witness might. He testified, on direct examination, that he had been, by this court, twice disbarred from practicing as an attorney at law. Upon his opening statement to the jury, he had admitted that he had been twice disbarred. The state sought to prove, upon his cross-examination, some of the facts upon which the disbarments were based. The court announced that the records in those proceedings would be the best evidence.

The state then offered three opinions in evidence as a part of defendant's cross-examination. Two of these opinions were in the proceedings wherein defendant was disbarred, the other in a proceeding wherein he sought reinstatement after the second disbarment. These opinions were objected to as immaterial and improper cross-examination, and one on the additional ground that it was incompetent. These objections were overruled.

Conceding, but not deciding, that the fact that defendant had been disbarred,...