State v. Ferguson
| Decision Date | 30 June 1925 |
| Docket Number | 5635 |
| Citation | 48 S.D. 346,204 N.W. 652 |
| Parties | STATE OF SOUTH DAKOTA, Respondent, v. ARTHUR FERGUSON, Defendant and appellant. |
| Court | South Dakota Supreme Court |
ARTHUR FERGUSON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hand County, SD Hon. James McNenny, Judge #5635--Reversed Frank R. Fisher, Miller, SD Gardner & Churchill, Huron, SD Attorneys for Appellant. Buell F. Jones, Attorney General, Pierre, SD C. M. Carroll, State's Attorney, Miller, SD Bernard A. Brown, Pierre, SD Attorneys for Respondent. Opinion filed June 30, 1925
Defendant, a man 68 years of age, was informed against for the murder of his wife, Sarah J., Ferguson, a woman of approximately 70. He was convicted of manslaughter in the first degree and given the maximum sentence of 20 years in the penitentiary, together with a fine of $1,000. From the judgment and an order denying his application for a new trial, he appeals.
Appellant assigns error in support of six principal contentions: First, that he had no legal preliminary examination before his trial; second, that the evidence is insufficient to justify the verdict; third, that the trial judge in several instances abused his discretion to the prejudice of defendant; fourth that the jury was guilty of misconduct; fifth, that improper cross-examination of appellant was permitted over his objection; sixth, that the private prosecutor, who assisted the state's attorney, was guilty of misconduct these several groups of assignments will have our attention in the order named.
Section 4707, Code 1919, so far as applicable here, provides:
"No Information Until Preliminary Examination.--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 magistrate, unless such person shall waive such right. ..."
Appellant contends in this case that an information was filed and his trial had without his first having had a legal preliminary examination before a magistrate. In the first instance a preliminary in formation for murder was filed before a justice in Hand county, from whom appellant took a change of venue. The second justice, feeling himself disqualified by reason of having been a member of the coroner's jury, on his own motion called in Hon. C. C. Briggs, county judge of Hand county, to hold the preliminary examination, and the county judge, purporting to act as a committing magistrate for and in behalf of said justice, over the objection of the appellant, conducted the examination and bound the appellant over. Appellant thereupon instituted habeas corpus proceedings in the circuit court, by virtue of which the preliminary examination conducted as aforesaid was held irregular and void, the commitment set aside, and the defendant ordered discharged.. Immediately thereafter a new preliminary information, upon the same charge, was filed before the said Briggs, county judge, and appellant was brought before him for preliminary examination. Before the examination commenced, appellant filed an affidavit alleging that he could not have a fair and impartial hearing and examination before the said Briggs by reason of bias and prejudice and demanded a change of committing magistrate. The county judge denied the application, held the preliminary examination, and bound the appellant over. It is appellant's contention that he was entitled as a matter of absolute right to a change of committing magistrate upon the filing of his affidavit before County Judge Briggs; that, upon the filing of such affidavit, the county judge had no further jurisdiction except to enter the order transferring the matter to another magistrate; and that the purported examination was void. If the committing magistrate, before whom appellant was brought for examination upon the new or second preliminary information, warrant, and arrest, had been a justice of the peace, there is no doubt but that appellant's contention would be correct by virtue of the provisions of section 4422, Code 1919. This section of the statute, however, is limited by its terms to "criminal proceedings before a justice of the peace." It does not by any express terms apply to any other committing magistrate. The only provision for change of judge or place of trial in criminal proceedings in the county court is section 4455, Code 1919, which reads:
"Change of Judge and Place of Trial.--A criminal action prosecuted by information in the county court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending, whenever it shall appear to the satisfaction of the court, by affidavit or other evidence, that a fair and impartial trial cannot be had in such county in which case the court may order the defendant to be tried in some near or adjoining county in the circuit court of any circuit where a fair and impartial trial can be had; but the defendant shall be entitled to the removal of the action but once, and no more; and if he shall make affidavit that he cannot have an impartial trial by reason of the bias or prejudice of the presiding judge of the county court where the action is pending, the judge of such court must call another county judge to preside at such trial and it shall be the duty of such other judge to preside at such trial and do any other act with reference thereto as though he were the presiding judge of such county court."
This section, it will be observed, applies only to "a criminal action prosecuted by information."
Section 4700, Code 1919, defines information as follows:
"The word 'information' as used in this title, unless a different intention clearly appears, shall lie interpreted to mean a verified statement in writing, charging one or more persons with the commission of a public offense requiring the intervention of a grand jury or a preliminary examination, filed by the state's attorney or other person duly authorized to perform the duties of state's attorney with respect thereto, in a court having jurisdiction to try and determine the offense specified therein."
This section is annotated by the Code Commission as follows:
"This is a new section designed to distinguish the charge filed in the trial court from the charge presented to the committing magistrate, which has been designated the 'preliminary information.'"
It is very apparent, in view of the provisions of section 4700, that the plain and natural construction of section 4455 is that it applies only to the actual:trial of criminal cases in the county court and does not apply to the case of a preliminary examination before the county judge as a committing magistrate. The appellant, in his brief, recognizes the normal interpretation of section 4455, Code 1919, but nevertheless contends that it is essential that this court should extend by construction either section 4455, Code 1919, or section 4422, Code 1919, to embrace the case of a preliminary examination upon preliminary information before a county judge, acting as a magistrate, and that otherwise his constitutional rights, both state and federal, are violated.
So far as concerns the Constitution of this state, appellant's position, briefly stated, is that, inasmuch as an accused, brought before a justice of the peace as committing magistrate for examination upon a preliminary information, is entitled to a change of committing magistrate upon the filing of an affidavit of prejudice, then our statutes must be construed to accord him the same privilege if under like circumstances he is brought before a county judge as a committing magistrate, otherwise the statute authorizing county judges to act as committing magistrates must be held void under section 34, art. 5, of the Constitution of the state of South Dakota, which reads as follows:
"All laws relating to courts shall be general and of uniform operation throughout the state, and the organization, jurisdiction, power, proceedings and practice of all the courts of the same class or grade so far as regulated by law, and the force and effect of the proceedings, judgments and decrees of such courts severally shall bv uniform: Provided, however, that the Legislature may classify the county courts according to the population of the respective counties and fix the jurisdiction and salary of the judges thereof accordingly."
Appellant contends that the county court and justice court, when acting as cotnmitting magistrates, are courts of the same class and grade, and the Constitution, therefore, requires uniformity in their proceedings, including uniformity in the privilege of change of venue. It is sufficient answer to this contention to point out that a committing magistrate, conducting a preliminary examination in a criminal case, is not a "court" within the meaning of this section of the Constitution.
State v. Sonnenschein, 156 N.W. 906. See, also, State v. Raaf, 16 Idaho 411, 101 P. 747; Ex parte Gist, 26 Ala. 156; State v. Nast, 209 Mo. 708, 108 S.W. 563; People v. Cohen, 118 Cal. 74, 50 P. 20; People v. Swain, 5 Cal. App. 421, 90 P. 720; State v. Fox, 83 Conn. 286, 76 A. 302, 19 AnnCas 682.
Appellant further urges, however, that the statute granting power to county judges to act as committing magistrates, unless it be construed as authorizing change of venue upon affidavit of prejudice by defendant, as from a justice of the peace, is repugnant to section I, art. 14, of the Constitution of the United States.
Here appellant apparently contends that he is denied equal protection of the laws if he cannot have a change of venue from the county...
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