State v. Pratt
| Decision Date | 29 May 1907 |
| Citation | 112 N.W. 152,21 S.D. 305 |
| Parties | STATE OF SOUTH DAKOTA, Defendant in error, v. HENRY PRATT, Plaintiff in error. |
| Court | South Dakota Supreme Court |
HENRY PRATT, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Lyman County, SD Hon. Frank B. Smith, Judge Reversed James Brown, J. G. Bartinc, A. B. Chubbuck Attorney for plaintiff in error. S. W. Clark, Attorney General William Williamson, State’s Attorney Attorneys for the State. Opinion filed, May 29, 1907
Plaintiff in error was tried and found guilty of the crime, of perjury, and the first ground urged for a reversal is that the accused had neither had nor waived a preliminary examination before a committing magistrate prior to the filing of the information by the state’s attorney. On the 5th day of July, 1905, a sworn complaint was filed with a justice of the peace charging David Colombe, Jesse Moran, and plaintiff in error with the crime of perjury committed on the 19th day of January, 1903, at the trial of the case of the State of South Dakota against Andrew Nightpipe in the circuit court of Lyman county. Colombe and Moran were placed under arrest, and held to answer at a preliminary hearing which took place on the 4th day of December, 1905, but plaintiff in error was not apprehended until the 10th day of January, 1906, which was after the magistrate had made his certified return of the record and proceedings to the circuit court as required by the statute. Section 158, Rev. Code Cr. Proc. However, when plaintiff in error was brought before the magistrate by virtue of a warrant previously issued, the original complaint, filed before that officer, but subsequently transmitted to the clerk of the circuit court with the proper return thereon as to Colombe and Moran, was read to the accused, by the magistrate, and, immediately upon being informed of the charge against him and of all his legal rights in the premises, he waived examination, and was held to answer to the circuit court then in session. In the absence of anything to the contrary the presumption is entertained that the joint complaint which of necessity had been field in circuit court was authoritatively returned to the magistrate before whom it was first filed for use at the preliminary examination of the accused as to whom the jurisdiction conferred upon the officer by statute had not yet been exercised. It will thus be seen that a sworn complaint was duly filed with the magistrate, charging plaintiff in error with a public offense, and that as to him no examination had ever been held or return made to the circuit court. Without any claim of resulting prejudice to plaintiff in error, the mere act of transmitting to the circuit court the entire record of the preliminary examination of Colombe and Moran in no manner impaired the powers of the magistrate as to him, and nothing has been urged in support of the point that constitutes a valid objection to the complaint.
It is further contended that but one act of perjury, in which the three defendants joined, was charged in the complaint before the magistrate, while an offense entirely different was described in the separate information under which plaintiff in error was tried and convicted. To justify the assertion it is urged that under section 27, Rev. Pen. Code, providing that “all persons concerned in the commission of a crime … are principals” that two or more persons may commit perjury collectively, and that it is then a joint offense, such as an affray, riot, conspiracy, and the like, but in this view we cannot concur. As perjury does not require the participation of more than one person, and is scarcely susceptible of being committed in joint simultaneousness with others, the crime described in the separate information filed against plaintiff in error by the state’s attorney in circuit court was the identical offense charged against him in the complaint under which he waived examination without an objection to its form or substance, and it is now too late to subject it to the strictest rules of technical pleading.
By the terms of, section 169, Rev. Pen. Code, every person concerned in the commission of the crime of perjury, by willfully procuring another person to commit the act, is guilty of subornation of perjury, and, therefore, section 27 of the act, making a principal offender of an accessory before the fact though not present when the prime was committed, is not applicable to the crime of perjury. Assuming without deciding that with Colombe and Moran plaintiff in error might have been jointly charged and tried for the crime of perjury, no valid claim is made that the separate information and trial operated prejudicially to any of his substantial rights, and upon that ground no reason for disturbing the action of the court below is made to appear. Even where two or more persons are jointly charged with a felony, and neither demands a separate trial, they may be tried together or separately in the discretion of the court. Section 358, Rev. Code Cr. Proc. The information is so clear and specific as to all the essential elements of the offense and alleged statements of the accused constituting perjury that the trial court was fully justified in overruling the demurrer interposed, on the ground that facts sufficient to constitute a public offense are not stated therein, and to copy therefrom or give the point any further consideration in this opinion would serve no useful purpose.
The January, 1906, term of the circuit court being in session at the time plaintiff in error waived the preliminary examination and was held to answer, the act of granting the state a postponement at such term to the following term when the trial took place did not entitle the accused to his discharge under section 630, Rev. Code Cr. Proc., which reads as follows: “If defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.” As the state’s showing for a postponement was ample, and, granted only to the next term in which the case could be tried, there was no abuse of discretion nor legal necessity for ordering the prosecution dismissed when regularly reached for trial at such term.
Nor is there any merit in the contention that a reversal must follow on account of a fatal variance between the pleading and the proof as to the oath taken by plaintiff in error. True, it is alleged in the information that he was sworn by the court, while the undisputed evidence shows that, by the duly elected, qualified, and acting clerk, the oath was administered in open court in presence of the presiding judge, and the allegation thus contested is thereby amply sustained. Under the title “Perjury,” 9 Encyclopedia of Evidence, P. 754, we quote as follows: “Proof that an oath was administered in the presence of the court by any officer authorized so to do is sufficient to sustain an allegation that the person was sworn by the court or in court.” The following cases are to the same effect: Keator v. People, 32 Mich. 484; Oaks v. Rodgers, 48 Cal. 197: State v. Caywood, 96 Iowa, 367, 65 N.W. 385; Cutler v. Territory, 8 Old. 101, 56 Pac. 861; State v. Spencer, 6 Or. 152; Server v. State, 2 Blackf. (Ind.) 35; 2 Whart. Cr. Law, §§ 1257, 1287, 1315.
After proper identification, the clerk’s authenticated minutes and the record of the trial and proceedings in the case of State of South Dakota against Andrew Nightpipe were properly admitted in evidence, and the assignment of error based upon an objection thereto is not maintainable. It seems to be well settled that such records are admissible, for the purpose of showing the jurisdiction of the court and the pendency of the action at the trial of which it is alleged the crime of perjury was committed, and it was held to be the best evidence of guilt that could be produced in the case of United States v. Walsh (C. C.) 22 Fed. 644, but here we are not called upon to go to that extent nor to sanction the doctrine therein announced. As the record so offered and received in evidence disclosed only the nature of the crime charged against Nightpipe, the regularity of the proceedings and the jurisdiction of the court to hear and determine the case, and contained nothing that could have been considered by the jury as probative evidence of the false swearing charged in the information before us, the case is not within any exception, to the rule requiring the court either upon or without the request of counsel for the accused to limit or...
To continue reading
Request your trial