CAMPBELL
J.
The
second session of the territorial Legislature of Dakota
enacted a Criminal Code (Laws Dak. 1862-63, cc. 1-33) and by
section 7 of chapter 19 (page 120) provided as follows:
"Sec.
7. When, by law, an offense comprises different degrees, an
indictment may contain counts for the different degrees, of
the same offense, or for any such degrees. The same
indictment may contain counts for murder, and also for
manslaughter or different degrees of manslaughter. Where the
offense may be committed by the use of different means, the
indictment may allege the means of offense in the
alternative. Where it is doubtful to what class an offense
belongs, the indictment may contain several counts describing
it as of different classes or kinds."
This
continued as the law of the territory until it was replaced
by the Criminal Code of 1868-69 (Laws Dak. 1868-69, c. 1),
section 236 thereof being as follows:
"Sec.
236. The indictment must charge but one offense, and in one
form only; except that where the offense may be committed by
the use of different means, the indictment may allege the
means in the alternative."
By the
Revised Codes of Dakota of 1877 (section 217, Code of
Criminal Procedure) the statute became as follows:
"Sec.
217. Charge but One Offense. The indictment must charge but
one offense, but the same offense may be set forth in
different forms or degrees under different counts; and when
the offense may be committed by the use of different means,
the means may be alleged in the alternative in the same
count."
Section
217, Code Cr. Proc. 1877, continued verbatim as section 7244,
Compiled Laws 1887.
After
statehood, and by chapter 64, Laws 1895, prosecution by
information came into our law, and section 3 of that chapter,
with reference to informations, provided in part as follows:
"***
And the offense therein charged shall be stated with the same
precision and fullness in matters of substance as is now
required in indicting in like cases; different offenses and
different degrees of the same offense may be joined in one
information in all cases where the same might be joined in
different counts in one indictment. ***"
The
Code Commission of 1903 carried section 7244, Compiled Laws,
forward into the 1903 Code (section 224, Code Cr. Proc. 1903)
without change, except that after the first two words,
"the indictment," they inserted the words "or
information."
Section
224, Code Cr. Proc. 1903, continued without change until
1913, when it was amended by chapter 242, Laws 1913, to read
as follows:
"Section
224. The indictment or information must charge but one
offense."
In that
form it was carried without change into the Revised Code of
1919 as section 4720.
By
chapter 197, Laws 1925, section 4720, Rev. Code 1919, was
amended to the following form:
"Sec.
4720. The indictment or information must charge but one crime
and in one form except that the crime may be charged in
separate counts in the same indictment or information to have
been committed in a different manner or by different means;
and where the acts complained of may constitute different
crimes, such crimes may be charged in separate counts in the
same indictment or information."
By
chapter 143, Laws 1927, the section as so amended in 1925 was
again amended to read as follows:
"Sec.
4720. The indictment or information may charge two or more
different offenses connected together in their commission, or
different statements of the same offenses, or two or more
different offenses of the same class of crimes or offenses,
under separate counts, and if two or more indictments or
informations are filed in such cases, the court may order
them consolidated. The prosecution shall not be required to
elect between different offenses or counts set forth in the
indictment or information, but the defendant may be convicted
of any number of offenses charged and each offense upon which
defendant is convicted, must be stated in the verdict:
Provided, that the court in the interest of justice and for
good cause shown, may, in its discretion, order that the
different offenses or counts set forth in the indictment or
information be tried separately, or divided into two or more
groups and each of said groups tried separately.
"Section
2. All acts and parts of acts in conflict herewith are hereby
repealed."
The
present action was instituted against the defendant
subsequently to the taking effect of chapter 143, Laws 1927,
upon an information in three counts as follows:
"That
James Fox, late of Meade county, South Dakota, on or about
the 2d day of December, 1926, within the county of Meade and
state of South Dakota, did commit the crime of violating the
provisions of the Prohibitory Law as follows:
"Count
One: That the said James Fox did on or about the 2d day of
December, 1926, within the county of Meade and state of South
Dakota and the jurisdiction of this court, willfully and
unlawfully manufacture a certain quantity of intoxicating
liquor with intent then and there upon the part of the said
James Fox to violate the provisions of the Prohibitory Law of
the Revised Code of 1919 of the State of South Dakota.
"Count
Two: That the said James Fox did on or about the 2d day of
December, 1926, within the county of Meade and state of South
Dakota and the jurisdiction of this court, willfully and
unlawfully keep and store a certain quantity of intoxicating
liquor capable of being used as a beverage, with
intent upon the part of the said James Fox to violate and
evade the provisions of the Prohibitory Law of the Revised
Code of 1919 of the State of South Dakota.
"Count
Three: That the said James Fox did on or about the 2d day of
December, 1926, within the county of Meade and state of South
Dakota and the jurisdiction of this court, willfully and
unlawfully have and possess a certain quantity of sour mash,
being a preparation from which intoxicating liquor is made,
with intent then and there upon the part of the said James
Fox to violate and evade the provisions of the Prohibitory
Law of the Revised Code of 1919 of the State of South Dakota,
the acts described in each of said counts being contrary to
the form of the statutes in such case made and provided and
against the peace and dignity of the state of South
Dakota."
The
case, coming regularly on for...
