State v. Larson, 12976
| Decision Date | 23 July 1980 |
| Docket Number | No. 12976,12976 |
| Citation | 294 N.W.2d 801 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Patricia LARSON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lori S. Wilbur, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
A. Thomas Pokela of Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.
A Minnehaha County jury convicted appellant of violating SDCL 22-34-1, injury to private property in the first degree. She appeals from that conviction on the ground that the information failed to state an offense in that it failed to allege all of the essential elements of the offense. We affirm.
Appellant and a truck driver, Kelvin Leopold (Leopold), whom she had been dating, had an argument. After separating, Leopold drove his pickup to a garage owned by his employer. Appellant apparently followed and after some further discussion with Leopold, appellant proceeded to ram her car into Leopold's pickup, thereby shoving the pickup forward into the door of the garage. Both the pickup and the garage door were damaged. 1
Appellant was arrested and counsel appointed to represent her. She was tried before a jury and found guilty as charged. At this point appellant raised the issue of adequacy of the information for the first time. The trial court sentenced her to one year in the South Dakota State Penitentiary, Women's Reformatory Section, in Yankton, South Dakota.
Appellant argues that since the State failed to allege in the information one of the essential elements of the offense charged, the information itself is void for failure to state an offense, and her conviction must therefore be reversed. We agree with appellant that the information 2 fails to allege all of the essential elements which are listed in SDCL 22-34-1. 3 Although the information fails to allege that appellant damaged the property "without the consent of the other persons," we do not find the defect in this case to be fatal.
Even though the information does not set forth all of the essential elements of the offense of injury to private property in the first degree, it does set forth the statute which appellant violated, and the jury instructions numbered 8 4 and 9 5 do allege all of the essential elements, including the one omitted from the information. This is sufficient to correct the defect in the information. "(W)e conclude that the defect, if any . . . was cured by the trial court's instruction . . . which clearly informed the jury (of) the essential elements . . . ." State v. Giuliano, 270 N.W.2d 33, 38 (S.D.1978).
Apparently the evidence to support the giving of the instructions was introduced without objection. Trial court proceedings are presumed to be correct, Anderson v. Adamson, 79 S.D. 429, 112 N.W.2d 612 (1962), and this is particularly true when there is no record of the proceedings complained of before us. Crosby v. Sande, 180 N.W.2d 164 (N.D.1970). In the instant case the record before us contains no transcript of any of the trial court proceedings. We therefore presume that evidence was introduced on all of the essential elements without objection.
The judgment of the trial court is affirmed.
All the Justices concur.
1 Lacking a record from which to glean the factual situation, we have relied on the admissions in appellant's brief and the allegations in the complaint upon which appellant was convicted.
2 The information, in pertinent part, reads as follows:
SAM D. SECHSER, (Deputy) State's Attorney of the County of Minnehaha, in the name of, and by authority of the State of South Dakota, informs the Court: That PATRICIA LARSON on or about the 24th day of July, 1979 in the County of Minnehaha and State of South Dakota aforesaid then and there did intentionally injure, damage or destroy private property, a 1976 Dodge pickup truck and...
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