State v. Judge, 10122

• Decision Date: 19 November 1964
• Docket Number: No. 10122,10122
• Citation: 81 S.D. 128,131 N.W.2d 573
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Lawrence S. JUDGE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 573

131 N.W.2d 573

81 S.D. 128

STATE of South Dakota, Plaintiff and Respondent, v. Lawrence S. JUDGE, Defendant and Appellant.

No. 10122.

Supreme Court of South Dakota.

Nov. 19, 1964.

John C. Farrar, Rapid City, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Robert A. Miller, Asst. Atty. Gen., Pierre, Robert L. Varilek, Deputy State's Atty., Rapid City, for plaintiff and respondent.

ROBERTS, Judge.

Defendant was charged with assisting prisoners in the Pennington County jail in an attempted escape. Counsel was appointed to represent him plea of not guilty was entered and after trial to a jury he was found guilty.

The information charged that defendant on May 4, 1963, 'wilfully and unlawfully, and feloniously did attempt to carry or send into a prison, to-wit: the Pennington County Jail, items useful to aid prisoners in making their escape, to-wit: hacksaw blades, with intent to facilitate escape of said prisoners, to-wit: Ronald Stinnett and Lee Meyers, who were at said time and place prisoners charged with a felony and confined in said Pennington County Jail, in violation of SDC 13.1228, and acts amendatory thereto, and, Contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of South Dakota.'

The pertinent statutes are:

'Every person who willfully be any means whatever, assists any prisoner confined in any prison, in any escape or attempted escape therefrom, or who carries or sends or attempts to carry or send into any prison anything useful to aid any prisoner in making his escape with intent to facilitate escape of any prisoner, is punishable, whether such prisoner escapes or not, as follows: (1) If such prisoner was confined upon a charge or conviction of felony, by imprisonment in the State Penitentiary not exceeding ten years; (2) If such prisoner was confined otherwise than upon a charge or conviction of felony by imprisonment in the county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or both. * * *' (SDC 13.1228)

'Every person who attempts to commit any crime and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable' as therein provided. (SDC 13.0401)

'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense charged.' (SDC 1960 Supp. 34.3669)

When the state called its first witness, defendant objected to the introduction of any evidence upon the ground that the allegations of the information are duplicitous and repugnant. The objection was overruled. Defendant insists that the information intermingles the elements of two offenses and did not apprise defendant with reasonable certainty of the accusations against him. The information is substantially in the language of Section 13.1228, supra, creating and defining the offense of assisting or aiding an escape from prison. It is ordinarily sufficient to follow the language of the statute in charging an offense of this character. State v. Thomas, 78 S.D. 568, 105 N.W.2d 549. If an information, in other words, informs the accused with reasonable certainty of the charge made against him it is sufficient. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455. The information describes an integral part of an intended escape and an ineffectual act done toward its accomplishment. The provisions in subdivisions (1) and (2) of Section 13.1228, supra, relate to punishment and not to definition and in charging the offense it was not necessary to include reference thereto. There was no error in overruling the objection to the information.

It is contended by counsel for defendant that the evidence was not sufficient to warrant the verdict of guilty. Defendant did not testify and called by witness to testify in his behalf. It appears from the evidence that in the afternoon of May 4, 1963, appellant went to the Pennington County jail and was permitted by the jailer to visit with prisoners Ronald Stinnett and Lee Meyers. The jailer testified that he handed to defendant, as requested by the prisoners, money belonging to them in the sum of $34. The following morning the jailer found a paper bag containing five chocolate candy bars in front of the rear wheel of a county truck parked near the jail. A broken hacksaw blade was found in each of four of the candy bar wrappears.

George Tennyson, Deputy Sheriff of Pennington County, testified to a conversation he had with defendant on May 13, 1963, at a place referred to in the record as the Police Investigation Office, Ellsworth Airforce Base, during an investigation of the case by him and another deputy. He testified that defendant was shown the candy and blades found by the jailer and that defendant admitted that he 'put the hacksaw blades in the candy'. This witness continued: 'I said, 'Did you have a conversation with Ronald Stinnett and Lee Meyers on Saturday afternoon?' The defendant said, 'yes'. I said, 'What was that conversation?' The defendant said, 'Meyers and Stinnett told me they wanted to get some hacksaw blades in the jail. They said they wanted me to get a box of breakfast food, and put the blades in, then we decided it would be better to put the blades in candy bars. They told me to leave...