State v. McDonald
| Decision Date | 02 July 1902 |
| Citation | 91 N.W. 447,16 S.D. 78 |
| Parties | STATE v. McDONALD. |
| Court | South Dakota Supreme Court |
Error to circuit court, Hamlin county.
Lewis McDonald was convicted of arson, and brings error. Affirmed.
Wilbur S. Glass and Ivan W. Goodner, for plaintiff in error. A. W Burtt, Atty. Gen., Alva E. Taylor, Asst. Atty. Gen., and Aubrey Lawrence, State's Atty., for the State.
The questions presented by the assignment of errors in this case are as follows: "(1) That the facts stated in the information do not constitute a public offense; (2) that the verdict rendered by the jury is a nullity; (3) that the verdict is against the law and the evidence; (4) that one of the trial jurors was incompetent by reason of actual bias, he having a fixed and unchangeable opinion that the plaintiff in error was guilty of the offense charged, and had expressed such an opinion before he entered the jury box." The information upon which the plaintiff in error was tried and convicted, omitting formal parts, is as follows: "That Lewis McDonald, *** on or about the 22d day of March, A. D 1901, *** did commit the crime of arson in the third degree which said crime was committed as follows, to wit: That the said Lewis McDonald, *** on or about the 22d day of March, A. D. 1901, with intent so to do, and in the nighttime of said day, with force and arms, wrongfully, unlawfully feloniously, and maliciously a certain building, to wit, a barn, did set fire to and burn, with intent then and there to burn, consume, and destroy the same, *** and which said barn was not the subject of arson in the first or second degree." No demurrer was interposed to the information, but a motion in arrest of judgment was made, and denied by the trial court.
One of the grounds for the arrest of judgment was that the time alleged in said information as to when said offense was committed was not stated with sufficient legal certainty.
The learned counsel for plaintiff in error contends that the allegation in the information that the offense was committed "on or about the 22d day of March, 1901," is uncertain and indefinite, and that the use of the expression "on or about" renders the information fatally defective. Such may have been the rule at common law, but this strictness of the common law in England was abrogated by statute (14 & 15 Vict. c. 100, § 24), which provides no indictment for any offense shall be holden insufficient "for omitting to state the time at which the offense was committed in any case where time is not the essence of the offense nor for stating the time imperfectly." 1 Archb. Cr. Proc. p. 278. In this state it is provided: "The precise time at which the offense was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense." Section 7245, Comp. Laws. This section seems to have been intended to modify the rigorous rule of the common law, and such seems to be the view of the courts in states having similar provisions. State v. Thompson, 10 Mont. 549, 27 P. 349; State v. Williams, 13 Wash. 335, 43 P. 15; State v. McCarthy, 44 La. Ann. 323, 10 So. 673; Brown v. State, 16 Neb. 659, 21 N.W. 454; State v. Harp, 31 Kan. 496, 3 P. 432; Rawson v. State, 19 Conn. 292.
In State v. Williams, supra, the supreme court of Washington uses the following language: The provisions of the Code of that state referred to in the opinion are substantially the same as those found in section 7245, above quoted. In State v. McCarthy, supra, the supreme court of Louisiana says: While this method of pleading is not to be commended, we are of the opinion that, in view of the provisions of our statute and decisions of the courts having similar statutes, the learned circuit court ruled correctly in denying the motion in arrest of judgment upon the ground that the term "on or about" was used in the information, and the same was thereby rendered uncertain.
The jury returned a verdict of "guilty as charged in the information." It is contended on the part of the plaintiff in error that the verdict is defective, in that it fails to designate the degree of arson for which the accused was convicted, and for this reason it is a nullity. By section 7428 it is provided: "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty." By section 6727 arson is distinguished into four degrees. And sections 6728-6731 define what shall constitute arson in the first and second degrees. Section 6733 provides: "Maliciously burning in the night-time any building not the subject of arson in the first or second degrees, *** and any barn, mill or manufactory, is arson in the third degree." It will be observed from the information upon which the plaintiff in error was tried that it alleged therein that he committed the crime of arson in the third degree, and that the building it is alleged he set fire to with the intent then and there to burn was a barn and that it is further alleged in the information that the said barn was not the subject of arson in the first or second degree. It clearly appears, therefore, from the information itself, not only by the averments of the state's attorney, but by the description of the building, that the offense could not have been other than arson in the third degree. The verdict of the jury, therefore, finding the plaintiff in error guilty as charged in the information, was a substantial compliance with the law. Under the information no verdict other than the one returned could have been properly found, except the verdict of not guilty. Section 7421, Comp. Laws, reads as follows: "A general verdict upon the plea of not guilty is either guilty or not guilty which imports a conviction or acquittal of the offense charged in the...
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