State v. Pirkey

• Decision Date: 16 December 1908
• Parties: STATE v. PIRKEY.
• Court: South Dakota Supreme Court

22 S.D. 550
118 N.W. 1042

STATE
v.
PIRKEY.

Supreme Court of South Dakota.

Dec. 16, 1908.

Appeal from Circuit Court, Lyman County.

William Pirkey was convicted of buying and receiving stolen property, and he appeals. Affirmed.

Haney, P. J., dissenting in part.

[118 N.W. 1043]

Preston & Hannett and N. R. Furlong, for appellant.

S. W. Clark, Atty. Gen., C. D.

[118 N.W. 1044]

Sterling, Asst. Atty. Gen., and William Williamson, State's Atty., for respondent.

CORSON, J.

Upon an information duly filed by the state's attorney of Lyman county the defendant was tried and convicted of the crime of buying and receiving stolen property knowing the same to have been stolen, and from the judgment he has appealed to this court.

The first error assigned is that the court erred in overruling defendant's demurrer to the information. To this information the following demurrer was interposed: “The defendant demurs to the information herein upon the ground: First, that more than one offense is charged, viz., buying stolen property knowing the same to have been stolen, receiving stolen property knowing the same to have been stolen; second, that the facts stated in said information do not constitute a public offense.” It is alleged in the information that the defendant, on the 19th day of January, 1907, in the county of Lyman, unlawfully, knowingly and feloniously did commit the crime of buying and receiving stolen property knowing the same to be stolen. The information then proceeds to allege the larceny of 17 head of horses by three persons named therein, and that thereafter the defendant unlawfully, feloniously, well knowing said horses to have been stolen, taken, and carried away, as aforesaid, did buy, receive, and take into his possession said 17 head of horses, the property of one Herman Woeppel, all of the reasonable value of $1,200, said horses being then and there stolen property. The contention of the appellant that two offenses are charged in the information, namely, the buying and receiving of stolen property knowing the same to have been stolen is clearly untenable. The rule seems to be well settled that, when a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may charge any and all of such acts conjunctively as constituting a single offense. 22 Cyc. 380; State v. Donaldson, 12 S. D. 259, 81 N. W. 299;State v. Kerr, 3 N. D. 523, 58 N. W. 27. Mr. Bishop, in his work on Statutory Crimes, § 244, says: “If, as is common in legislation, a statute makes it punishable to do a particular thing specified, ‘or’ another thing, ‘or’ another, one commits the offense who does any one of the things, or any two, or more, or all of them. And the indictment may charge him with any one, or with any larger number, at the election of the pleader, employing, if the allegation is of more than one, the conjunction ‘and’ where ‘or’ occurs in the statute.” The further contention of the appellant that the facts stated in the information do not constitute a public offense is clearly untenable for the reason hereinbefore stated.

It is contended by the appellant that the court erred in not postponing the trial to enable the defendant to procure the testimony of one Ash, who the defendant claims was a material witness in his behalf, and who was at the time out of the state. Section 535 of the Revised Code of Criminal Procedure provides: “If the court or judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.” It will be observed that the granting or refusing of the application is wholly a matter in the discretion of the trial court and no error can be assigned on its action, unless there is a manifest abuse of such discretion. Live Stock Company v. Burris, 10 S. D. 430, 73 N. W. 919;Saastad v. Okeson, 16 S. D. 377, 92 N. W. 1072, 9 Cyc. 166; Underhill on Crim. Ev. 268-270. In our opinion the court committed no error, and did not abuse its discretion in denying said motion. The defendant claims that the said Ash was present at the time he purchased the horses in controversy of one Morgan, who had them in his possession, and that Morgan gave him a bill of sale, and that witness Ash would testify that Morgan signed the bill of sale. It was shown, however, on the part of the state that there were other persons present at the time of the sale of the horses by Morgan to the defendant, and it was further shown by the affidavits of all these persons except one that no such man as Ash was present at that time. The court was therefore fully justified under the evidence in denying the defendant's motion.

It is contended by the appellant that the information is insufficient for the reason that it is not alleged therein that the said property was purchased or received “upon any consideration,” as one of the essential ingredients of the crime is that the property was bought or received “upon some consideration.” In our view of the statute the essential ingredient of the crime is...