State v. Johns

• Decision Date: 24 May 1910
• Citation: 25 S.D. 451,127 N.W. 470
• Parties: STATE OF SOUTH DAKOTA,respondent Plaintiff and respondent, v. EARL JOHNS, Defendant and appellant.
• Court: South Dakota Supreme Court

25 S.D. 451, 127 N.W. 470 (1910)

STATE OF SOUTH DAKOTA,respondent Plaintiff and respondent v EARL JOHNS,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

J. H. Scales

Attorney for appellant.

S. W. Clark, Atty. Gen.

C. D. Sterling, Asst. Atty. Gen.

George J. Danforth, State's Atty.

Attorneys for the State.

Opinion filed May 24, 1910

CORSON, J.

Upon an information duly filed by the state's attorney of Minnehaha county, the defendant was tried and convicted of the crime of robbery in the second degree, and from the judgment entered therein the defendant has appealed to this court. It is contended by the Attorney General that the record contains no assignment of errors so far as appears by the abstract, and hence there is nothing before this court to review. An examination of the abstract discloses the fact that an appeal from the judgment was taken to this court on the 12th day of January, 1909, but no assignment of errors appears in the abstract, and we are of the opinion, therefore, that the contention of the Attorney General is correct. Section 489 of the Code of Criminal Procedure in relation to the return to a writ of error provides as follows:

"Upon the writ of error being sued out, the clerk of the court upon whom it is served, must, within ten days thereafter or within such reasonable time as may be allowed to him, transmit to the clerk of the supreme court the writ with his return thereon, to which shall be annexed and returned an authenticated copy of the record of this action as mentioned in section 453, and of all bills of exception, together with an assignment of errors and prayer for reversal."

And rule 7 (22 S.D. 3, 124 N.W. viii) of this court in force at the time this appeal was taken, relating to writs of error, contains substantially the same provisions. And section 497 of the Criminal Code provides:

"When the writ is called for argument, the plaintiff in error must furnish each member of the court with a copy of the record of the action, bills of exception, and of the assignment of errors. If he fails to do so, the writ must be dismissed, unless, for cause shown, the court otherwise direct."

In 1937 the law relating to writs of error was amended by permitting an appeal to be taken instead of requiring a writ of error to be sued out of this court. Chapter 120, Laws 1907. An appeal, therefore, in a criminal case may be substituted for a writ of error. No change, however, as to the record to be returned to this court seems to have been made by the act. Whether or not it is now necessary that an assignment of errors be contained in the record returned to this court, it is not now necessary to decide, but it is essential in a criminal case, as well as in a civil case, that an assignment of errors shall be made in this court to enable it to determine the question presented for review. By the act of 1907 it, is provided that: "'Writ of error' where used in the laws of this state shall be held to mean and include 'appeal.'" It would seem, therefore, that it was not the...