State v. Kinney

• Citation: 21 S.D. 390,113 N.W. 77
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. CLYDE KINNEY, Plaintiff in error.
• Decision Date: 29 August 1907
• Court: South Dakota Supreme Court

21 S.D. 390

113 N.W. 77

STATE OF SOUTH DAKOTA, Defendant in error, v. CLYDE KINNEY,

Plaintiff in error.

South Dakota Supreme Court

Error to Circuit Court, Brule County, SD

Hon. Charles H. Whiting, Judge

Affirmed

G. P. Harken

Attorney for plaintiff in error.

S. W. Clark, Attorney General

J. E .House, State’s Attorney

Attorneys for the State.

Opinion filed August 29, 1907

FULLER, P. J.

Plaintiff in error was charged with and found guilty of the statutory offense of permitting his saloon to be kept open on Sunday, and here seeks a reversal on the ground that C. A. Novotny, the clerk of the circuit court of Brule county, before whom the district attorney swore to the information, added “Clerk of Court, Brule County,” to his signature on the jurat, and failed to specially designate that he was clerk of the circuit court of that county. The circuit court in which the information was entitled and filed takes judicial notice of its clerk and his signature affixed to the records and files of the office, and the general demurrer that “facts sufficient to constitute a public offense are not stated” was plainly insufficient to reach any objection to the jurat which is a mere certificate of the clerk that the information was subscribed and sworn to before him. Thus a twofold reason for overruling the demurrer is apparent, and the contention of counsel that it should have been sustained is wholly without merit, and require; no further consideration. Buell v. State 72 Ind. 523: Smith v. Walker, 93 Ga. 252, 18 S.E. 830; Hunter v. Le Conte, 6 Cow. (NY) 728.

Counsel for plaintiff in error grievously complains of the manner in which the trial was conducted by the judge presiding, and consequently a reversal is urged on the ground that the conviction resulted from the coercive obedience of the jury to certain instructions which it is claimed were equivalent to a directed verdict of guilty as charged in the information. The judge recalled the jury. several times upon his own motion for further instructions, given in language which could not be sanctioned under ordinary circumstances, but it cannot be rightfully held that the jury was coerced, or that he stated as a fact anything about which there was the slightest conflict in the evidence. Every element of the offense was clearly established by the undisputed testimony of all the witnesses, and on the part of the accused it was admitted by his counsel in open court “that Clyde Kinney was the proprietor of he saloon in question, and that the said saloon was open on Sunday, May 14, 1905.”

The proof that the saloon was open for business by his regularly employed bartenders who conducted the traffic on that day is absolutely unchallenged, and the only point urged before the jury for an acquittal was that this was done without his knowledge and against his positive instructions. The law requires that such a place “shall be closed on the...