State v. Jerke, 9043
| Decision Date | 06 September 1949 |
| Docket Number | 9043 |
| Parties | STATE OF SOUTH DAKOTA, Respondent, v. LEON JERKE, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Yankton County, SD
#9043—Affirmed
Lars A. Bruce, Yankton, SD
Attorney for Defendant and Appellant.
Sigurd Anderson, Attorney General
William J. Flittie, Assistant Attorney General, Pierre, SD
Lee H. Cope, State’s Attorney, Yankton, SD
Attorneys for Plaintiff and Respondent.
Opinion Filed Sep 6, 1949
Defendant was arrested for public intoxication and taken into custody by the sheriff of Yankton County. The arrest was made as a result of oral complaints to the sheriff and to a highway patrolman to the effect that a motor vehicle of a specific make and color and bearing a certain license number issued in this state was being driven in a reckless manner on US Highway 81 north of the City of Yankton. On the day following the arrest a preliminary complaint was made b fore a justice of the peace charging the defendant with reckless driving as defined by SDC 44.9921. This complaint fixed points along said highway between which the offense is alleged to have been committed. Upon this complaint and an accompanying affidavit, purporting to have been made before a justice of the peace in Yankton County, a warrant was issued for the arrest of defendant upon said charge and he was thereupon presented before the magistrate or a hearing. From the justice’s docket it appears that defendant, after being advised of his rights, waived preliminary hearing and was held to answer the charge at the next term of circuit court. He appeals from rulings of the trial court made before, at and subsequent to a jury trial which resulted in his conviction of reckless driving as charged in the information. Amplifications of this statement will be made as we review the points presented and argued under the assignments of error. We have chosen o review the claimed errors in the order in which they appear in the settled record.
The body of the reformation upon which defendant was tried is as follows:
“That on or about the 9th day of May, 1948, in the County Yankton and State of South Dakota, the defendant, Leon Jerke, did then and there wilfully, wrongfully and a lawfully drive and operate a motor vehicle, to-wit: a 1946 Ford Tudor automobile, 1948 License No. 34-2304, upon the public highways of Yankton County, South Dakota, carelessly and heedlessly in wilful and wanton disregard of the rights and safety of others and without due caution and circumspection and in a manner so as to endanger the person and property of others.”
At the time set for defendant’s plea to this information his counsel moved to quash the same upon the ground that defendant had not had a preliminary hearing before the information was filed. In support of this motion defendant contends that the information embraces and constitutes a substantial departure or variance from the charge contained in the complaint. As noted above, the preliminary complaint fixed specific points between which the reckless driving is alleged to have occurred on US Highway 81 in Yankton County whereas the information does not set forth the exact place in the county where the offense was committed.
In charging the offense of reckless driving our code requires no specification of particular place. It must, of course, appear that the crime was committed upon a highway within the jurisdiction of the court in which the prosecution in instituted. SDC §§ 44.9921 and 34.3010(4). Specification of particular place not being essential to a statement of the offense of reckless driving it follows that the failure of the information to include nonessential averments contained in the preliminary complaint is not and could not be a material variance. We see no merit in the motion to quash and conclude that the same was properly denied.
To said information defendant interposed a demurrer upon the ground that the same charges more than one offense. The overruling of said demurrer is the assigned error we next consider. It will be observed that the information incorporates practically all of that part of SDC 44.9921 defining the offense of reckless driving. The element of speed is omitted. Disjunctive definitions of said offense are alleged conjunctively. The opinion of this court in State v. Pirkey, 22 SD 550, 118 NW 1042, 18 AnnCas 192, is in point and we think conclusively upholds the ruling against defendant’s demurrer. It is therein held that when a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may charge any and all of such acts conjunctively as constituting a single offense. Cf. 27 AmJur, Indictments and Informations, § 104; 42 CJS, Indictments and Informations, § 166. Defendant relies upon State v. Rossman, 64 SD 532, 268 NW 702. We find in the opinion in that case no support for an assumption that the stated holding in State v. Pirkey, supra, no longer prevails. The insufficiency of the evidence to sustain the verdict is the sole question decided in the Rossman case. Defendant’s demurrer was properly overruled.
Before proceeding to trial the state’s attorney asked leave of court to endorse upon the information the name of a material witness he stated was not theretofore known to him. To this request the defendant objected for the reason that the code, SDC 34.1506, requires that names of witnesses be “attached” to the information. The trial court overruled said objection. In support of his complaint against the ruling of the court defendant argues here that the statute is positive and that had the case been properly investigated the state’s attorney would have known of the witness whose testimony he desired to submit if allowed to do so. Defendant does not assail the veracity or good faith of the state’s attorney or impute to him anything more than incompetency. With respect to the names of witnesses the statute requires that the state’s attorney indorse on the information those only “known to him at the time of filing the same.” Nothing in the record indicates an abuse of discretion by the trial court in allowing the requested indorsement and we are satisfied that there was none. Cf. State v. Roby, 49 SD 187, 206 NW 925; State v. Fulwider, 28 SD 622, 134 NW 807.
Defendant complains of a ruling of the court below denying his motion to strike testimony of the character of hearsay tending to identify him as the driver of the car as first described to the officers. If this ruling was error the same proved to be harmless in view of testimony subsequently received touching the matter of identification. To this testimony we will hereinafter refer in dealing with other points reviewed.
A portion of defendant’s brief is devoted to what are claimed to have been violations of provisions of the State and Federal Constitutions by the officers who arrested and questioned him. In answer to a question put to one of the officers by the state’s attorney calling for further conversation between the witness and defendant at the time of the arrest the witness volunteered the statement that he found a number of empty beer bottles in the car and asked defendant where he had gotten the beer. The witness proceeded to relate defendant’s answer and then explained the result of a more or less casual inquiry of a tavern keeper concerning the kinds or different brands of beer he kept for sale. To testimony relating to beer defendant made a general objection and thereupon moved to strike from the record all evidence about beer. In ruling upon the objection the trial judge stated in open court that the information did not charge intoxication. Counsel for defendant was then granted leave to show that the witness had no search warrant when he looked into the car. There was then no proof before the court that defendant’s car had been searched by the officers or either of them. The motion to strike testimony relating to beer and beer bottles was then renewed defendant contending that a search of the car without a warrant therefor was a violation of Article VI, Section 11 of the state constitution. We here note that neither of defendant’s motions to strike...
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