State v. Papernak

• Decision Date: 21 March 1921
• Docket Number: 4775
• Citation: 181 N.W. 955,44 S.D. 31
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. MICHAEL PAPERNAK, Defendant and appellant.
• Court: South Dakota Supreme Court

44 S.D. 31

181 N.W. 955

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

MICHAEL PAPERNAK, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Faulk County, SD Hon. Joseph H. Bottum, Judge #4775--Affirmed F. E. Snider. Attorney for Appellant. Byron S. Payne, Attorney General Vernon R. Sickel, Assistant Attorney General Attorneys for Respondent. Opinion filed March 21, 1921

WHITING, J.

Defendant was convicted of grand larceny. He appeals from the judgment and also from an order denying him a new trial.

The information was worded in the past tense, and yet through an error clearly clerical, it alleged that the crime was committed in October, 1920, while the information itself was filed in May, 1920. Neither by demurrer, objection to evidence proving the date of the offense, nor by motion in arrest of judgment, was this clerical error called to the attention of the trial court. In fact, the record shows that the variance between the date in the information and the date fixed by the proof was not called to the attention of the trial court until after judgment and upon the motion for a new trial. Yet, upon appeal, it is contended that, because of this statement of an impossible date, the information does not state facts sufficient to constitute a public offense.

Section 4725, R. C. 1919, provides that the "information is sufficient if it can be understood therefrom; ... (5) That the offense was committed prior to the time of filing the ... information."

This information being drawn in the past tense and the date alleged for the commission of the offense being an impossible date, it is urged that it does appear therefrom that the offense was committed prior to the time of filing same, and is therefore not open to attack because of what is apparently a clerical error. The courts, even in those states having statutes similar to section 4725, supra, are not in harmony upon this question. We do not find it necessary to express any opinion thereon because of the fact that appellant has not complied with our statutes in questioning the sufficiency of this information. If this information does not substantially comply with the above requirement of section 4725, such defect appears upon its fact and was waived by failure to demur because thereof. Section 4779, R. C. 1919. If such information does not describe a public offense, such defect appears upon its face and was waived by failure to demur or (upon the trial under the plea of "not guilty") to raise the question of such defect, or to raise same by motion in arrest of judgment. Section 4779, supra.

Appellant assigns as error the asking of one of the state's witnesses certain questions seeking to elicit an explanation of why a certain witness, whose name was indorsed upon the information, did not appear at the trial. Appellant urges that the persistent questioning by the state's attorney was prejudicial to the defendant in that it tended to impress upon the jury the conclusion that this witness, if present, would have been able to have testified to matters of material importance to the state. We are unable to find anything to support such. contention. The state was simply offering to show, in a perfectly proper manner, why this witness was not present. Without such showing the jury, knowing that such witness' name was indorsed on the back of the information, might have drawn wrong inferences from the fact of his absence.

Defendant testified that, upon a certain date, he had purchased a ticket over a certain line of railway from Faulkton to Minneapolis. The agent of the railway company was called in rebuttal. He testified that tickets sold at his office were numbered in numerical order; that the tickets were torn from stubs; that a ticket would be torn in a particular way and could not be torn in any other way; that he had only the one form of tickets for Minneapolis; and that it was his custom each morning to make a record of the sales of the previous day, which records were made from these stubs. It was this record, made by himself, upon which he based his testimony to the effect that no ticket from Faulkton to Minneapolis was sold at his office on the date named by defendant. Defendant has not cited and certainly could not cite any authority holding that such witness could not base his evidence on such record. No objection was made that the record was the best evidence.

Appellant also contends that the evidence was wholly insufficient to justify the verdict. There was evidence, circumstantial in its nature, which tended to support the conclusion arrived at by the jury. Such evidence did, as it might reasonably, satisfy the minds of the jurors. Under these facts, it is not our province to overturn the action of the jury.

The judgment and order appealed from are affirmed.

McCOY, J. (dissenting.)

I am unable to concur in the majority opinion. I am of the view that the judgment should be reversed on the ground that the information was not sufficient to sustain a conviction. The information was filed in May, 1920, alleging that the crime was committed in October, 1920, being an impossible date, subsequent to the filing of the information. This is not a case of uncertainty as to the time when the offense is alleged to have been committed, but the information "specifically" and "expressly" states that the offense was committed in October, 1920. I am of the view that under the statute of this state the allegation of the information stating the time of the offense to have been committed in October, 1920, cannot be treated as a clerical error, or other informality or defect in form. 14 RCL 179, and Morgan v. State, 51 Fla. 76, 40 South 828, 7 AnnCas 773.

Section 4721 of our Code of Criminal Procedure, Cole 1919, reads as follows:

"The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material ingredient of the offense."

It is perfectly clear that our statute requires the allegation of time as to the commission of an offense to be alleged as of a time before the filing of the information. In other words, time is a material and necessary allegation of an indictment or information. Our statute by express legislation enacts as the statute law of this state the familiar common-law rule stated in State v. Sexton, 10 N. C. 184, 14 AmDec 584, and which reads as follows:

"It is a familiar rule that the indictment should state that the defendant committed the offense on a specific day and year, but it is unnecessary to prove, in any case, the precise day or year, except where the time enters into the nature of the...