State v. Percy

• Decision Date: 12 November 1965
• Docket Number: No. 10128,10128
• Citation: 81 S.D. 519,137 N.W.2d 888
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Dale PERCY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 888

137 N.W.2d 888

81 S.D. 519

STATE of South Dakota, Plaintiff and Respondent, v. Dale PERCY, Defendant and Appellant.

No. 10128.

Supreme Court of South Dakota.

Nov. 12, 1965.

William G. Porter, Rapid City, court-appointed counsel for defendant and appellant.

Frank L. Farrar, Atty. Gen., Robert E. Ruddy, Asst. Atty. Gen., Pierre, and David Sieler, State's Atty., Rapid City, for plaintiff and respondent.

ROBERTS, Presiding Judge.

Defendant was tried and convicted of the crime of kidnapping. The information following the language of the statute charged that 'the Defendant, Dale Percy, at Rapid City, Pennington County, South Dakota, on or about October 10, 1960, * * * did then and there, willfully and unlawfully and feloniously, seize, confine, inveigle, decoy, kidnap, abduct and carry away and hold and detain Stephen Lux for ransom, reward or otherwise, in violation of SDC 1960 Supp. 13.2701; and Contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of South Dakota.'

The present action grows out of the transactions which gave rise to the information and trial in the case of State v. Percy, 80 S.D. 1, 117 N.W.2d 99. Defendant was therein convicted of indecently molesting a five year old child. This court held that there was error in admitting certain testimony and the judgment below was reversed. Defendant demurred in the second action to the information on the grounds that it did not state a public offense and that defendant was twice put in jeopardy for the same offense. The demurrers were overruled and the case was called for trial on July 22, 1963. Defendant was sentenced to the State Penitentiary for life and this appeal followed.

The principal grounds urged in support of the numerous assignments of error presented by defendant are as follows: (1) The defendant has been twice put in jeopardy for the same offense; (2) the information fails to state a public offense; (3) the court erred in receiving over the continuing objections of defendant's counsel statements of the victim and hearsay testimony of his parents; (4) the court erred in permitting the state's attorney to make an opening statement to the jury; and (5) the court erred in the giving of certain instructions and the rejecting of others.

The facts, as presently stated, were developed in the evidence introduced in behalf of the State. Though there are some differences in the evidence consisting of additions and omissions, much of the evidence in the two cases is identical. No evidence was offered in behalf of the defendant.

On October 10, 1960, about 8:45 a. m., Steven Lux, a five year old child, left his home to attend school. His mother about an hour later saw him at the front door of the Lux home 'crying' and looking 'as though he had been frightened.' He was holding his hand in the area of his buttocks. He told his mother that a man had taken him in his truck and hurt him. A medical examination later in the morning revealed small tears in the anal area. Police apprehended the defendant the following day. A police officer testified that defendant admitted that he was in the area of the school and the Lux home the previous day and had picked up a small boy. This witness also testified:

'Q. Later on the same day of October 11, did you have another conversation with Mr. Percy? A. I did.

'Q. Where did that conversation take place? A. Downstairs at the police station. * * *

'Q. Now, what, if anything, was said at that conversation, by Mr. Percy to anyone? A. I asked him, pointing to Steven Lux, if this was the boy that he had picked up in the Robbinsdale area near the school on October 10 and he said that he looked familiar, about the same size and he thought it was the boy and then he added that he couldn't be sure.'

The provisions of the constitution of this state against double jeopardy (Sec. 9, Art. VI) apply only to the same offense and have no application to another or different offense. State v. Caddy, 15 S.D. 167, 87 N.W. 927; State v. Barnes, 26 S.D. 268, 128 N.W. 170; State v. McGaughey, 45 S.D. 379, 187 N.W. 717. SDC 1960 Supp. 34.3520(3) permits a defendant to plead a former judgment of conviction or acquittal of the offense charged.

In State v. Adams, 11 S.D. 431, 78 N.W. 353, the trial court on its own motion set aside a conviction and awarded defendant a new trial. A second information was filed against defendant alleging the same offense with the exception that the time of the commission of the crime was alleged to be at an earlier date. This court held that the trial court was without authority to award a new trial on its own motion and that the defendant was placed in double jeopardy by the second trial.

We have in this case a much different question. The jury on the first trial found defendant guilty of indecent molestation of a minor child (SDC 1960 Supp. 13.1727) and on appeal the conviction as we have stated was reversed. In the absence of the appeal, the defendant could not have been again tried for the same offense. SDC 1960 Supp. 34.4109 authorizes this court in a criminal action to 'reverse, affirm, or modify the judgment or order appealed from, and may direct a new trial.' The reversal of a judgment without directtion is tantamount to remand for a new trial. Froke v. Watertown Gas Company, 68 S.D. 266, 1 N.W.2d 590.

A defendant convicted of a crime waives his constitutional protection against being put twice in jeopardy and may be tried again where the conviction is reversed on appeal. 21 Am.Jur.2d, Criminal Law, Sec. 209. Where a new trial has been granted, the action stands as if there had been no trial and may be retried on the original information or a new information. 22 C.J.S. Criminal Law, Sec. 256; State v. Cook, 96 N.H. 212, 72 A.2d 778; People v. Woodward, 394 Ill. 433, 69 N.E.2d 181. Defendant could then have been again tried for indecent molestation of a minor child. We need not determine whether the one crime is an ingredient of the other so that evidence which proves the one would prove the other. The constitutional provisions against double jeopardy were never intended to apply where a conviction is reversed on appeal and a new trial granted.

SDC 1960 Supp. 13.2701, following the provisions of the federal statute referred to as the Lindbergh Act (18 U.S.C.A. Sec. 1201), punishes any person who 'shall seize, confine, inviegle (sic), decoy, kidnap, abduct or carry away any person and hold or detain such person for ransom, reward, or otherwise, except in the case of an unmarried minor by a parent thereof.' The act contemplates that the victim shall have been (1) unlawfully restrained and (2) held 'for ransom, reward, or otherwise'. It is claimed that no violation of the statute was alleged in the information or established by the evidence. This court considering the statute here involved in State v. Strauser, 75 S.D. 266, 63 N.W.2d 345, held that the words 'or otherwise' are sufficiently comprehensive to include reasons for the holding of a kidnapped person other than ransom or reward and that in information in the language of the...