State v. Finder

• Decision Date: 24 January 1900
• Citation: 81 N.W. 959,12 S.D. 423
• Parties: STATE v. FINDER.
• Court: South Dakota Supreme Court

12 S.D. 423

81 N.W. 959

STATE

v.FINDER.

Supreme Court of South Dakota.

Jan. 24, 1900.

On rehearing. Reversed.

For former opinion, see 72 N. W. 97.

CORSON, J.

This case was decided at a former term of this court, and is reported in 10 S. D. 103, 72 N. W. 97. On application of the plaintiff in error, a rehearing was granted. Upon a re-examination of the case, we are of the opinion that the court in its former decision was in error in holding that the reception of the verdict by Judge Gaffy was only an irregularity. We are now satisfied that, when Judge Gaffy made the order calling in Judge Campbell to try the case, he ceased to have any further jurisdiction over the cause, and in receiving the verdict of the jury he acted entirely without jurisdiction. This being so, the action of Judge Gaffy was ineffectual for any purpose. On further consideration of section 7312, Comp. Laws, as amended in 1891 (chapter 50, Laws 1891), we are satisfied that it was the intention of the lawmaking power to clothe the judge called in to try the case with all the powers of the circuit judge in that circuit for the trial of that particular cause, and to devest the presiding judge of that circuit of all jurisdiction over the cause for all purposes affecting any substantial right of the accused. This seems to be the view taken by the courts of states having a similar statute. Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. C. 511;Noffzieger v. Reed (Mo. Sup.) 11 S. W. 315;Voullaire v. Voullaire, 45 Mo. 602;Lacy v. Barrett, 75 Mo. 469;Perkins v. Hayward, 124 Ind. 445, 24 N. E. 1033;Perrin v. State, 81 Wis. 135, 50 N. W. 516. So much of our former opinion, therefore, as relates to the reception of the verdict, is disaffirmed. The judgment of the circuit court is reversed, and a new trial ordered.