State v. King, 7657

Decision Date11 January 1934
Docket Number7657
Citation62 S.D. 184,252 N.W. 36
PartiesSTATE OF SOUTH DAKOTA Plaintiff, v. J.B. KING, Defendant.
CourtSouth Dakota Supreme Court

J.B. KING, Defendant. South Dakota Supreme Court Original Proceeding #7657—Application Denied J.B. King, pro se. Opinion Filed Jan 11, 1934 CAMPBELL, Judge.

In August, 1922, applicant, J.B. King, was engaged in serving a two-year sentence in the state penitentiary at Sioux Falls, S.D., which sentence had been imposed upon him by the circuit court of Bon Homme County, S.D., as a result of his conviction of the offence of grand larceny. On August 17th, King and other convicts escaped from the penitentiary, in the course of the escape making an attack with knives upon one Muchow, an officer of the penitentiary. King was recaptured on August 26th, and thereafter (with other of the escaping convicts) was tried in the circuit court of Minnehaha County, S.D., on a charge of assault with intent to kill by means of a deadly weapon (section 4051, Rev. Code 1919), the information in that case being in part as follows:

“That Joe Foreman, J.B. King and Joe Teel ... did commit the crime of Assault with the intent to kill, the same being a second offense under Section 3612 of the Revised Code of 1919 in this:

“ ... The said J.B. King had been theretofore duly and legally arrested, tried and convicted on the 24th day of March, 1921, in the County of Bon Homme, State of South Dakota, on the charge of Grand Larceny, and had been on said day duly sentenced to serve a term of two years in the state penitentiary at Sioux Falls, South Dakota. ...

“And that thereafter and while each of said defendants were incarcerated in the said South Dakota state penitentiary and serving the sentences thereinbefore stated, and on the 17th day of August, 1922 ... the said defendants and each of them, being then and there armed with dangerous weapons, namely knives about six or eight inches long, did then and there unlawfully, wilfully and feloniously commit an assault and battery upon the person of Arthur Muchow by then and there forcibly striking, cutting, beating, bruising and wounding the said Arthur Muchow with the said knives aforesaid with the intent upon the part of the said defendants to kill and murder the said Arthur Muchow, and the said knives used as aforesaid being such as was likely to produce death, and the said defendants and each of them, did then and there and by said means commit the crime of assault with the intent to kill, contrary to the form of the Statute in such case made and provided. ...

King pleaded “not guilty” to said information and went to trial, counsel having been appointed in his behalf. The jury returned into court their oral verdict of “guilty as charged in the information.” By section 4051, Rev. Code, 19,19, the punishment for the offense charged in the information was imprisonment in the state penitentiary not exceeding ten years. By section 3612, Rev. Code 1919, then in force, it was provided that every person who had been convicted of an offense punishable by imprisonment in the penitentiary and was thereafter convicted of an offense punishable upon first conviction by any term exceeding five years in the penitentiary should be punishable by imprisonment in the penitentiary “for a term not less than ten years.” Pursuant to the terms of these statutes, the circuit court of Minnehaha County, S.D., after the jury had found King guilty of assault with intent to kill, sentenced him on November 6,...

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