State v. Foreman

Decision Date30 April 1942
Docket Number8561
Citation3 N.W.2d 477,68 S.D. 412
PartiesSTATE OF SOUTH DAKOTA, Plaintiff, v. JOE FOREMAN, Defendant
CourtSouth Dakota Supreme Court
Original Proceeding

#8561—Writ denied.

Joe Foreman, pro se.

Opinion filed April 30, 1942


The application of Joe Foreman for a writ of habeas corpus asserts that he is being illegally detained in the State Penitentiary. The events leading up to the trial and conviction of the applicant are set forth in the opinion of this Court in State v. King, 62 S. D. 184, 252 N. W. 36. The premise of the application is that applicant was charged and convicted under Section 4052, Rev. Code of 1919, which provides for a penalty of imprisonment in the State Penitentiary not exceeding five years, and that the trial court exceeded its jurisdiction in sentencing him to imprisonment for the remainder of his natural life. This premise is not sustained by the showing of the applicant.

It appears from the face of the petition that applicant was charged and convicted under Section 4051, Rev. Code of 1919.

By that Section it is provided: “Every person who commits any assault and battery upon another by means of any deadly weapon, or by any other means or force likely to produce death, with intent to kill any other person, is punishable by imprisonment in the state penitentiary not exceeding ten years.”

Section 4052, under which petitioner contends he should have been sentenced, reads in part as follows: “Every person who is guilty of an assault with intent to kill any person, the punishment for which is not prescribed in the preceding section, is punishable by imprisonment in the state penitentiary not exceeding five years, * * *.”

The information charges “that Joe Foreman, J. B. King and Joe Teel, … did commit the crime of Assault with the intent to kill, ….” We assume that this language serves as the basis for applicant’s contention that he was convicted under Section 4052. The true nature of the charge, however, is disclosed by the body of the instrument. It is there charged “the said defendants and each of them, being then and there armed with dangerous weapons, namely, knives about six or eight inches long, did then and there unlawfully, wilfully and feloniously commit an assault and battery upon the person of Arthur Muchow by then and there forcibly striking, cutting, beating, bruising and wounding the said Arthur Muchow, with the said knives aforesaid with the intent upon the part of the said defendants to kill and murder the said Arthur Muchow, and the said knives used aforesaid being such as was likely to produce death and the said defendants and each of them, did then and there and by said means commit the crime of Assault with the intent to kill, ….” If it be conceded, without so deciding, that the phrase “Assault with the intent to kill” fails to correctly denominate a crime under Section 4051, and does name a crime within Section 4052, it does not follow that the information charges a violation of Section 4052. The acts alleged by the pleader to have been committed by the defendant, rather than the name he ascribes to the crime, constitute the true test of the nature of the offense charged. This is said to be the almost universal rule. 121 ALR 1088; and see State v. Ewert, 52 SD 619, 219 NW 817. Thus tested, the inforation plainly charges a violation...

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4 cases
  • Application of G. K., 11873
    • United States
    • South Dakota Supreme Court
    • December 31, 1976
    ...the writ should not issue because petitioner did not make a prima facie showing that he was entitled to custody. See State v. Foreman, 1942, 68 S.D. 412, 3 N.W.2d 477. She argues that the petition must show legitimation in order for petitioner to have standing to seek custody of an illegiti......
  • King v. Jameson
    • United States
    • South Dakota Supreme Court
    • February 2, 1944
    ...1, supra, by a term of “not less than ten years” and therefore under § 3617, supra, was punishable by life imprisonment. State v. Foreman, 68 SD 412, 3 NW2d 477. On the other hand, if as an original offense the crime was punishable for five years or less, as a subsequent or second offense, ......
  • State ex rel. King v. Jameson
    • United States
    • South Dakota Supreme Court
    • February 2, 1944 means of a deadly weapon with intent to kill as a second offense and was obviously framed under § 4051 and § 3612, Rev.Code 1919. State v. Foreman, supra. § 4051 reads as follows: person who shoots or attempts to shoot at another, with any kind of firearm, air gun, or other means, with i......
  • State v. Foreman
    • United States
    • South Dakota Supreme Court
    • April 30, 1942

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