State v. Johnson
| Decision Date | 14 December 1914 |
| Docket Number | 3642. |
| Citation | 149 N.W. 730,34 S.D. 601 |
| Parties | STATE v. JOHNSON et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Spink County; Frank McNulty, Judge.
Charlotte Johnson and another were convicted of taking personal property from the custody of an officer having possession thereof under an execution, and they appeal. Affirmed.
O. S Hagen and A. W. Wilmarth, both of Huron, for appellants.
Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Ass't Atty Gen., and Roy T. Bull, State's Atty., of Redfield, for the State.
The defendants were convicted upon an information charging:
"That heretofore, to wit, on or about the 24th day of September, 1913, at the county of Spink and state of South Dakota, Oscar Johnson and Charlotte Johnson of said county and state did commit the crime of willfully delaying and obstructing a public officer in the discharge of the duties of his office, committed as follows, to wit: That at said time and place said Oscar Johnson and said Charlotte Johnson did willfully and unlawfully obstruct one Earl Lower, a duly appointed, qualified, and acting deputy sheriff of the county of Spink and state of South Dakota, from taking possession of and removing certain grain upon which the sheriff of said Spink county had previously levied under and by virtue of a certain execution issued out of the circuit court of Spink county, S. D., by the clerk of said circuit court, which execution was dated the 8th day of August, 1913, and in an action in said circuit court wherein one N.H. Campbell was the plaintiff and one Bengt Johnson was defendant, and under which execution said sheriff, to wit, on the 11th day of August, 1913, had levied on some grain and taken the same into his possession, said Earl Lower then acting for and on behalf of the said sheriff, which fact the said Oscar Johnson and Charlotte Johnson then knew, and the said Oscar Johnson and said Charlotte Johnson, then and there knowing that said grain had been levied upon by the sheriff of Spink county and that said Earl Lower was acting for and on behalf of said sheriff, willfully and unlawfully seize, take possession of, and carry away said grain notwithstanding such levy, by overcoming the resistance of said Earl Lower as deputy sheriff as aforesaid, contrary to the form of the statute," etc.
Before trial, defendants moved to quash the information on ten separate grounds: First. That there was no preliminary hearing upon which to base the information. Second. That the magistrate failed to reduce the testimony of witnesses to writing in the form of depositions, as demanded by defendants. Third. That the testimony was not signed or subscribed by the witnesses. Fourth. That the testimony was not properly sealed up, certified, or properly transmitted to the clerk of the courts by the magistrate.
The fifth and sixth grounds are in effect a restatement of the preceding grounds. Seventh. That it does not appear from the transcript of the magistrate's record that a public offense had been committed by the defendants, or either of them. Eighth. It does not appear from the transcript that the offense charged in the information was committed by the defendants, or either of them. Ninth. That it does not appear from said transcript that sufficient cause was found to believe the defendants guilty of the offense charged. Tenth. That there was no indorsement by the magistrate, on the complaint or information upon which said preliminary hearing was had, of an order to the effect that the offense charged therein had been committed, and that there is sufficient cause to believe the defendants guilty thereof, and that they be held to answer as provided by the Code of Criminal Procedure. The motion was overruled, and appellants assign error.
The record conclusively shows that a preliminary examination was had before one P. L. Alexander, a justice of the peace of Spink county; that appellants demanded that the testimony be taken in shorthand, and that it was so taken and certified by a stenographer. The requirement (Code Crim. Proc. § 158) that the justice transmit the evidence to the circuit court is a duty to be performed after the preliminary examination is completed, and a failure of the justice to perform that duty does not render the prior proceedings void, and is not a ground for quashing the information filed in circuit court. Whatever the effect of the failure of the justice to indorse the proper order on the information or to make the proper entry in his docket, when the accused is held to answer the crime charged and is committed to custody, might be in a habeas corpus proceeding we need not determine.
But no mere irregularity in or omission to make such order can render the preliminary examination itself void. In this case, a written accusation was filed before the justice; the accused had his counsel present, and was accorded all his statutory rights, as shown by the transcript of the justice's docket. The state's witnesses were sworn and examined in his presence. The preliminary examination itself was regular and complete. The proceedings had afforded the accused every substantial advantage contemplated by the law, and his legal rights have not, in any degree, been prejudiced by the irregularities complained of. The statute does not make such irregularities a ground for quashing the information filed in the circuit court. The statute does not require that an order be made holding the accused to answer, before an information shall be filed, but only that a preliminary examination shall be had. Code Cr. Proc. § 211. The trial court did not err in denying the motion to quash the information.
The defendants also filed a demurrer to the information on the grounds: First, that it does not state facts sufficient to advise a person of ordinary understanding of the nature of the offense charged; second, that more than one offense is charged in the information; third, that a different offense was charged in the information from that charged in the complaint at the preliminary hearing before the magistrate. The information clearly alleges facts which constitute a criminal offense. The question of a variance between the information and the complaint at the preliminary hearing cannot be raised by demurrer. A demurrer goes no further than to question the sufficiency of the facts alleged in the information demurred to. The second ground of demurrer will be referred to later.
The assignments of error extend over 25 pages of the printed record, and an attempt to review them separately is wholly impracticable. For this reason we shall only consider the questions which we deem vital to a determination of appellants' legal rights.
Appellants' main contention is that the information charges a violation of section 187 of the Penal Code, while the evidence shows that the conviction must have been under section 142 of the Penal Code. Section 142 is as follows:
"Every person who willfully injures or destroys, takes or attempts to take, or assists any other person in taking or attempting to take from the custody of any officer or person, any personal property which such officer or person has in charge under any process of law, is guilty of a misdemeanor."
"Every person who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of misdemeanor."
The second ground of demurrer is "that the information alleges and charges more than one offense." This particular ground of demurrer is not specified in the assignments of error, and is not preserved by the assignment "that the information does not state sufficient facts to advise a person of ordinary understanding with what offense he is charged; the allegation in the information being indefinite."
It is true, the information states that appellants "did commit the crime of willfully delaying and obstructing a public officer in the discharge of the duties of his office," practically in the language of section 187 of the Penal Code yet the information further alleges that this crime was "committed as follows, to wit," and states, in substance, that on the 11th day of August, 1913, the sheriff of Spink county levied upon and took into his possession certain grain in stack and in the field, under an execution issued out of the circuit court of Spink county upon a judgment in an action wherein one Campbell was plaintiff and one Bengt Johnson was defendant, and that the defendants then and there, knowing that said grain had been thus levied upon by the sheriff, did willfully and unlawfully seize, take possession of, and carry away said grain by overcoming the resistance of said sheriff, etc. These allegations of acts and facts clearly bring the crime alleged within the provisions of section 142, in that it charges appellants with taking from the custody of the sheriff personal property which he then had in charge, under process of law. The accused were called upon to answer to a charge of having willfully done certain wrongful acts specified in the information, and we are not able to see how they could have been misled to their...
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