State v. Hillerud, No. 9598

CourtSupreme Court of South Dakota
Writing for the CourtRENTTO; SMITH
Citation76 S.D. 476,81 N.W.2d 130
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Arthur HILLERUD, Defendant and Appellant.
Decision Date16 February 1957
Docket NumberNo. 9598

Page 130

81 N.W.2d 130
76 S.D. 476
STATE of South Dakota, Plaintiff and Respondent,
v.
Arthur HILLERUD, Defendant and Appellant.
No. 9598.
Supreme Court of South Dakota.
Feb. 16, 1957.

[76 S.D. 477] C. L. Anderson, Sioux Falls, for defendant and appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., for plaintiff and respondent.

Page 131

RENTTO, Judge.

Appellant is under a life sentence for the crime of escape. After entry of his plea of guilty of the crime charged, the punishment therefor was enhanced pursuant to SDC 13.0611--our habitual criminal statute. His assignments of error present two questions. He claims that the court erred to his prejudice in these respects:

(1) That he was not advised as to his right to the assistance of counsel when arraigned on the information charging him with escape;

(2) That he was not advised of his right to a jury trial when arraigned on the information accusing him of three previous felonious convictions.

These propositions were also the basis of his motion for a new trial. He appeals from the judgment entered and the order denying him a new trial.

[76 S.D. 478] Defendant was in the county jail at Brookings, South Dakota, serving a thirty-day sentence for a motor vehicle violation. While so incarcerated he told the custodian that he had the court's permission to leave the jail to visit his parents and go to the hospital. He indicated that he would return in time for the noon meal. The custodian permitted him to leave but he did not return. Two days later, on October 8, 1955, the sheriff apprehended him in the business district of Brookings and returned him to the jail.

On October 12th a complaint was filed in justice court charging him with the crime of escape. On the same day defendant appeared there without counsel. After an explanation of his rights he waived preliminary examination and was bound over to the circuit court. Having expressed a desire to plead guilty an information was filed in circuit court, on the same day, charging the crime of escape. On the afternoon of that day, without counsel, he was taken before a judge of that court for arraignment.

At the outset of the arraignment the court explained the nature of the charge and made known to the defendant all of his rights in the premises as required by SDC 34.2302, including a statement that he would be imprisoned in the penitentiary if convicted of the charge. Defendant stated that he would like to talk to an attorney, whom he named. A recess was then taken during which this attorney advised the defendant and the court that he did not care to represent him. Thereupon, proceedings were reconvened and the court told the defendant that if he wanted to get another attorney he would be given an opportunity to do so. He then expressed a desire to proceed without counsel. After such expression the court informed him of his right to have an attorney appointed for him by the court. He said he knew that, but expressed a willingness to proceed without counsel and told the court that the only reason he wanted the attorney was for his ailing father.

The information was then read to the defendant and he was furnished a copy. The court again told him of his right to counsel and informed him that he was not required to enter a plea at that time unless he wanted to. [76 S.D. 479] He indicated that he wanted to enter his plea and upon being asked as to his plea, said he was guilty.

At this juncture it should be observed that the defendant is a thirty-eight-year-old laborer. He is unmarried and makes his home with his parents. His answers to the court's questions indicate that he is not lacking in intelligence. Nor was he unaccustomed to or unfamiliar with criminal proceedings in our circuit courts. In the eight years prior to this occasion he was convicted of three felonies in the courts of this state. Some of these were before the judge who heard this case and on each occasion he served time in the penitentiary. In at least one previous criminal proceeding he had been represented by an attorney.

The right of one accused of crime to have the aid of counsel is preserved by

Page 132

Art. VI, Sec. 7, of the Constitution of this state. It is also secured to an accused by the Fourteenth Amendment to the Constitution of the United States. While it is a constitutional right it nevertheless is a right which may be waived. State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731; State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441; see authorities cited in these cases. However, in order that such waiver is binding on the defendant it must be made voluntarily and intelligently by a competent mind. State v. Haas, 69 S.D. 204, 8 N.W.2d 569. We are satisfied that the circumstances under which defendant waived his right to the assistance of counsel meet all of the requirements of this salutary rule. That at one stage he indicated he might want counsel does not make a subsequent waiver ineffectual.

On the same day and shortly after defendant's plea of guilty was entered and accepted, the state's attorney filed an additional information accusing him of having been previously convicted of three felonies. This...

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10 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...71 S.D. 144, 22 N.W.2d 731, 732 (1946); State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W. 2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.......
  • State v. Johnson, No. 9186
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...W.Va. 830, 98 S.E.2d 740; Massey v. United States, 8 Cir., 281 F. 293; People v. Lawrence, 390 Ill. 499, 61 N.E.2d 361; State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130; State v. McClay, 146 Me. 104, 78 A.2d 347; Waxler v. State, 67 Wyo. 396, 224 P.2d 514; People v. Hoerler, (Dist.Ct.App.Cal.)......
  • Chavez v. State, No. 5119
    • United States
    • United States State Supreme Court of Wyoming
    • December 28, 1979
    ...S.W.2d 13 (1977); State v. Harris, Mo., 547 S.W.2d 473 (1977); People v. Morton, 41 Cal.2d 536, 261 P.2d 523 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130 Although we have said that "(t)here is no constitutional right to a jury trial on the issue of a second offense, where the heari......
  • State v. Zeimer, No. 9013
    • United States
    • Supreme Court of Utah
    • January 5, 1960
    ...261 P.2d 523. 6 People v. Morton, 41 Cal.2d 536, 261 P.2d 523 (discussing California precedent for all four rules); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130. Apparently, Florida would follow this rule. See Shargaa v. State, Fla., 102 So.2d 814, certiorari denied 358 U.S. 873, 79 S.Ct. ......
  • Request a trial to view additional results
10 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...71 S.D. 144, 22 N.W.2d 731, 732 (1946); State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W. 2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.......
  • State v. Johnson, No. 9186
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...W.Va. 830, 98 S.E.2d 740; Massey v. United States, 8 Cir., 281 F. 293; People v. Lawrence, 390 Ill. 499, 61 N.E.2d 361; State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130; State v. McClay, 146 Me. 104, 78 A.2d 347; Waxler v. State, 67 Wyo. 396, 224 P.2d 514; People v. Hoerler, (Dist.Ct.App.Cal.)......
  • Chavez v. State, No. 5119
    • United States
    • United States State Supreme Court of Wyoming
    • December 28, 1979
    ...S.W.2d 13 (1977); State v. Harris, Mo., 547 S.W.2d 473 (1977); People v. Morton, 41 Cal.2d 536, 261 P.2d 523 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130 Although we have said that "(t)here is no constitutional right to a jury trial on the issue of a second offense, where the heari......
  • State v. Zeimer, No. 9013
    • United States
    • Supreme Court of Utah
    • January 5, 1960
    ...261 P.2d 523. 6 People v. Morton, 41 Cal.2d 536, 261 P.2d 523 (discussing California precedent for all four rules); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130. Apparently, Florida would follow this rule. See Shargaa v. State, Fla., 102 So.2d 814, certiorari denied 358 U.S. 873, 79 S.Ct. ......
  • Request a trial to view additional results

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