State v. Johnson, 9517

• Decision Date: 29 August 1955
• Docket Number: No. 9517,9517
• Citation: 76 S.D. 37,71 N.W.2d 733
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Henry JOHNSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 733

71 N.W.2d 733

76 S.D. 37

STATE of South Dakota, Plaintiff and Respondent, v. Henry JOHNSON, Defendant and Appellant.

No. 9517.

Supreme Court of South Dakota.

Aug. 29, 1955.

Ellsworth F. Wilkinson, DeSmet, for defendant and appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., Harold E. Shaw, State's Atty., DeSmet, for plaintiff and respondent.

ROBERTS, Judge.

Defendant was charged with the offense of operating a motor vehicle on September 18, 1954, while under the influence of intoxicating liquor. The jury found the defendant guilty and he appeals asserting (1) error on the part of the court in permitting the state's attorney to endorse names of witnesses on the information, (2) misconduct of the state's attorney, (3) insufficiency of the evidence to support the verdict, (4) error in overruling motion for continuance, and (5) error in denying motion for new trial on ground of newly discovered evidence.

The state's attorney at the call of the calendar on the opening day, December 6, 1954, of the regular term of court asked leave to endorse on the information the names of three additional witnesses. Under the provisions of SDC 34.1506, the state's attorney must endorse on the information the names of those witnesses only who are known to him at the time of filing same. State v. Jerke, 73 S.D. 64, 38 N.W.2d 874. The information had been filed on September 27, 1954, when defendant appeared without counsel for arraignment. At that time defendant in reply to the court's inquiry whether he wished to be represented by counsel answered in the negative, but after the court's explanation to him that counsel would be appointed to defend him if he was unable to employ and desired the assistance of counsel, defendant indicated that he had changed his mind and would not plead guilty and requested the appointment of counsel. After inquiries as to whether defendant was financially able to procure counsel, the court concluded that defendant was entitled to counsel appointed by the court and represented by such counsel defendant appeared for arraignment as we have indicated on the opening day of the next term of court. The defendant having expressed an intention to plead guilty, there was at the time of filing the information no need of the presence of witnesses on the part of the state and it is true, as the state contends, that if defendant had not expressed a desire to plead guilty the state's attorney following the usual practice would not in all probability have filed the information until the time of arraignment on the opening day of the following term of court. The state's attorney stated that the names of the three witnesses were not known to him at the time of filing the information. When allowing the endorsement the court indicated that if requested a continuance would be granted by 'putting the case at the foot of the calendar which would mean a continuance of about ten days.' No such request for continuance was made. The record does not indicate an abuse of discretion in allowing the endorsement of the names of witnesses for the state and we are satisfied that no prejudicial error was committed. State v. Fulwider, 28 S.D. 622, 134 N.W. 807; State v. Roby, 49 S.D. 187, 206 N.W. 925.

Defendant contends that the state's attorney was guilty of misconduct. He objected to the following portion of the opening statement of counsel for the state: 'I believe after you hear the testimony there will be no doubt in your minds that he is guilty. If I did not believe that, I would not bring this charge against the man.' The court instructed the jury that the opening statement was not to be considered as evidence and that the opinion of the state's attorney should be disregarded. In view of the admonition of the court, we do not believe that the statement, while improper, was prejudicial to the defendant.

It is alleged in the information that defendant did 'wilfully and unlawfully operate and attempt to operate a motor vehicle, to-wit: 1946 Ford V-8 tudor sedan, on State Highway 25, 2 1/2 miles south of DeSmet, within said County, the same being a part of the public highway system of the State of South Dakota.' Counsel concedes that it was not necessary to describe with particularity the highway on which defendant was allegedly driving a motor vehicle while intoxicated. He contends, however, that the state having alleged that the highway on which defendant drove a motor vehicle was part of the public highway system of the state was required to prove such fact, though the evidence as to the location of the highway on which the offense was committed was undisputed and that the variance between the allegation and proof requires reversal of the judgment. Defendant cites and relies on Sexton v. State, 29 Ala.App. 336, 196 So. 742, and Tate v. State, 153 Tex.Cr.R. 571, 223 S.W.2d 634. An information must apprise the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455. We are unwilling to go so...