State v. Henning

• Decision Date: 08 February 1893
• Citation: 54 N.W. 536,3 S.D. 492
• Parties: STATE v. HENNING.
• Court: South Dakota Supreme Court

54 N.W. 536

3 S.D. 492

STATE v. HENNING.

Supreme Court of South Dakota

February 8, 1893

Syllabus by the Court.

1. An affidavit is not fatally defective because it expresses no venue on its face.

2. Where to an affidavit otherwise sufficient, but expressing no venue, is attached a proper jurat and seal, showing that the oath was administered to the affiant by a notary public, it will be presumed that the notary acted within his jurisdiction.

3. Where, under chapter 50, Laws 1891, such an affidavit is made, and presented by the accused, sufficiently alleging prejudice of the presiding judge of the circuit court, in which a criminal action by indictment is pending, and a change of judges asked for, as provided in said act, it is error for the court to disregard such affidavit and motion and proceed with the trial.

4. Such act, though permissive in form, must be construed as imperative.

Error to circuit court, Codington county; J. O. Andrews, Judge.

John Henning was convicted of malicious mischief, and brings error. Reversed.

Julian Bennett and Martin Sheldon, for plaintiff in error. Robert Dollard, Atty. Gen., for the State.

KELLAM J.

The plaintiff in error, having been indicted by the grand jury of Codington county, pleaded not guilty, and, prior to the commencement of his trial, made and presented to the court his affidavit of prejudice on the part of the presiding judge, and upon it moved that he be allowed a trial before a judge other than the judge of the court in which he was so indicted.

The motion was denied. He was then tried and convicted, and, upon such judgment, brings error to this court. Chapter 50, Laws 1891, amending section 7312, Comp. Laws, provides that "a criminal action prosecuted by indictment may, at any time before trial is begun, on the application of the defendant, be removed from the court in which it is pending if the offense charged in the indictment be either a felony or misdemeanor, whenever it shall appear to the satisfaction of the court by affidavits, or if the court should so order by other testimony, that a fair and impartial trial cannot be had in such county or subdivision, in which case the court may order the person accused to be tried in some near or adjoining county, in any circuit where a fair and impartial trial can be had; but the party accused shall be entitled to a removal of the action but once, and no more, and if the accused shall make affidavit that he cannot have an impartial trial, by reason of the bias or prejudice of the presiding judge of the circuit court where the indictment is pending the judge of such court may call any other judge of a circuit court to preside at said trial. ***"

It is not contended but that the affidavit was sufficient, and explicit in its allegation of prejudice, but it is claimed that the paper called an "affidavit" cannot be so considered on this argument, for the reason that, as shown in the abstract, it has no venue, and consequently is not an affidavit. Our statute defines an "affidavit" to be "a written declaration under oath, made without notice to the adverse party," the condition of nonnotice distinguishing it from a deposition. Sections 5278, 5279 Comp. Laws. The abstract in this case says: "The said motion was made upon the affidavit of the plaintiff in error, then presented and filed, as follows: '[Title of the case.] John Henning, being first duly sworn, says: ***. [Signed] John Henning. Subscribed and sworn to before me, this 7th day of July, 1892, by John Henning. Julian Bennett, Notary Public, South Dakota. [ Seal.]"' Thus, the abstract affirmatively shows that the paper contained the title of the case; that is, it showed the style of the court, and the county in which the action was pending, as well as the names of the parties. And. Law Dict. tit. "Title." It affirmatively shows that the paper was signed by the plaintiff in error, and that an oath as to its truthfulness was administered to him by a notary public. Such officer has authority to administer oaths in any county in the state. Section 494, Comp. Laws. Section 487 would seem intended to limit the jurisdiction of a notary public, in respect to the administration of oaths, to his own county, but said section 494 is a later enactment, and must prevail. It was not material to the character of the instrument as an affidavit that it show in what county the oath was so administered. It doubtless is desirable and convenient for many purposes that an affidavit so show, but we do not think it is indispensable. The important fact is that an oath was administered, by an authorized officer, and within his jurisdiction. The paper in question shows upon its face that upon a certain day it was signed by the affiant, and that an oath that it was true was administered to him by a notary public, who certified and attached his seal to the same. It would not be presumed against the validity of the affidavit that such notary had attempted unlawfully to exercise official functions outside the state, but the presumption would be the other way, and in favor of his official act; in other words, that he administered the oath in some county within the state. In Reavis v. Cowell, 56 Cal. 588, a paper like the one before us was held a good affidavit, because the court would presume in favor of the validity and regularity of the official act of the notary. In Young v. Young, 18 Minn. 90, (Gil. 72,) an affidavit was challenged upon the same ground as the one now being considered. It purported to have been sworn to before the clerk of the district court of Ramsey county, but, as...