State v. Fogg, 9949

• Decision Date: 27 June 1962
• Docket Number: No. 9949,9949
• Citation: 115 N.W.2d 889,79 S.D. 576
• Parties: STATE of South Dakota, Respondent, v. Alexis F. FOGG and Jesse Zimmerman, a/k/a Jesse Young, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 889

115 N.W.2d 889

79 S.D. 576

STATE of South Dakota, Respondent, v. Alexis F. FOGG and Jesse Zimmerman, a/k/a Jesse Young Defendants and Appellants.

No. 9949.

Supreme Court of South Dakota.

June 27, 1962.

Acie W. Matthews, Sioux Falls, for defendants and appellants.

A. C. Miller, Atty. Gen., Donald J. McClure, Asst. Atty. Gen., Pierre, William F. Clayton, State's Atty., Roger A. Schiager, Asst. State's Atty., Sioux Falls, for plaintiff and respondent.

HANSON, Judge.

Defendants were jointly charged with the crime of burglary. Both were found guilty and both appeal.

Police officers discovered a break-in at the Buffalo Bar in Sioux Falls early in the morning of January 26, 1961. The rear door had been pried open by a tire iron which was found inside. Some quart bottles of whiskey off the back bar, cigarettes, and $17.40 in change were taken. Defendants Fogg and Zimmerman were arrested in a cafe about 6:00 o'clock that morning on suspicion of having committed the burglary. They had a quart bottle of Seagram's Seven Crown whiskey with a bar type pourer in their possession and $6.40 in change was found in defendant Fogg's boot.

Defendants were arraigned in municipal court on January 27, 1961 and counsel was appointed to represent them as indigent defendants. A preliminary hearing was held on February 3, 1961 at which time defendants were held to answer for the charge of burglary in the third degree. On that day defendants' counsel orally requested the assistant state's attorney to file an information forthwith. On February 6th defendants' counsel again orally and in writing demanded the state's attorney file an information during the pending January term of circuit court. No information was filed at the January term during which the jury was periodically in session from January 23rd to March 7th. The information was filed on the first day of the succeeding May term and defendants' trial commenced on May 17, 1961. In the meantime defendants were kept confined in the Minnehaha County jail as they were unable to furnish bond.

At the commencement of trial defendants moved to dismiss the information upon grounds they had been denied their right to a speedy trial in violation of Section 7, Article VI of the South Dakota Constitution and in violation of SDC 1960 Supp. 34.2201 which provides as follows:

'When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.'

The showing of the state's attorney in resistance was to the effect that one assistant state's attorney had died and another had resigned leaving only himself and one assistant to handle the entire work of his office; and there was a large criminal calendar at the January term including a murder case, a first degree rape case and four cases in which pleas of not guilty by reason of insanity had been interposed all of which required extra preparatory work for the State. The trial court denied the motion to dismiss.

Defendants rely on the case of Colvin v. Callahan, 46 S.D. 221, 191 N.W. 948, as authority for their contention that the January 1961 term of circuit court was the next term of court at which they were held to answer within the contemplation of SDC 1960 Supp. 34.2201. Colvin v. Callahan was a mandamus proceeding in which this court did interpret the phrase 'at the next term of the court at which he is held to answer' to mean that 'if an accused is bound over during the interim between terms of court the information must be filed (unless good cause to the contrary is shown) at the next term, and that if an accused is bound over during the pendency of a term of circuit court the information should be filed at that term.' However, in State v. Smith, 70 S.D. 402, 18 N.W.2d 246, this court interpreted the phrase 'the next regular term' appearing in SDC 34.3304 to mean that if an accused demands a jury trial in municipal court, 'the action must be set down for trial at the next regular term and this refers to the regular term succeeding the one at which the demand is made.' Such is the common and ordinary understanding of that language. This is pointed out in Schrom v. Cramer, 76 Idaho 1, 275 P.2d 979, wherein the court was construing the identical statutory language involved here, i. e., 'at the next term of the court at which he is held to answer'. The Idaho Court said: 'All the authorities which have been called to our attention hold that the phrase 'the next term of court', as used in the statute, excludes the term of court then current and means the next ensuing term. And they hold such statute requires that an information or indictment must be filed against the defendant not later than the following term of court after his commitment unless good cause to the contrary be shown, and need not be filed during the current term of court.' Any construction to the contrary is strained, unnatural, and artificial. Accordingly, under SDC 1960 Supp. 34.2201 when a person is held to answer for a public offense during the pendency of a term of circuit court an information may be filed against him. It is not obligatory to do so. However, an information must be filed at the next succeeding term and if not so filed the court must order the prosecution dismissed, unless good cause to the contrary is shown. In the present action the State was therefore not obligated to file an information against defendants during the pending January 1961 term of circuit court. In full compliance with our statute an information was filed against defendants at the commencement of the succeeding May 1961 term. To avoid further speculation as to the efficacy of expressions to the contrary appearing in Colvin v. Callahan, 46 S.D. 221, 191 N.W. 948, the same are now expressly overruled.

Defendants' constitutional rights to a speedy trial were not otherwise denied or violated. Such right does not require a trial immediately after arrest or commitment. The right to a speedy trial is a relative term which must be determined in the light of circumstances surrounding each particular case. State v. Werner, S.D., 105 N.W.2d 668. It necessarily secures rights to an accused. It does not, however, preclude rights of public protection and 'should not operate to deprive the state of a reasonable opportunity of fairly prosecuting criminal actions.' State v. Violett, S.D., 111 N.W.2d 598.

After being arrested defendants were taken to police headquarters where they were separately questioned. Between 8:00 and 9:00 o'clock that morning Zimmerman orally confessed that he and Fogg committed the burglary and detailed how the crime was committed and what was taken. About 11:30 defendants were returned to their cells for feeding. After dinner Zimmerman's confession was reduced to writing. Although advised it was not necessary to give such a statement Zimmerman read and signed the same. Defendants contend such confessions were involuntary as a matter of law because Zimmerman had been drinking before his arrest, he was tired, and was not advised of his right to remain silent or of his right to counsel in advance of interrogation by the police.

Substantially the same contentions were considered and fully discussed by this court in the recent case of State v. Hinz, S.D., 103 N.W.2d 656. The procedure suggested therein relative to confessions was precisely followed by the trial judge here. That is, when defendants objected to evidence relative to the confessions the trial judge conducted a preliminary examination of all facts surrounding the making of the same outside the presence of the jury. The ultimate issue as to whether the confessions were voluntarily given was then submitted to the jury under proper instructions. We find no error in this regard.

Although a voluntary confession is not rendered inadmissible because the accused is not cautioned it may be used against him or advised of his right to remain silent and of his right to counsel in advance of police interrogation such practice is one to be commended. State v. Hinz, S.D., 103 N.W.2d 656; State v. Pierce, 4 N.J. 252, 72 A.2d 305; State v. Worthy, S.C., 123 S.E.2d 835. The absence of caution or warning, together with other circumstances, may...