State v. Pratt

Decision Date06 April 1906
Citation107 N.W. 538,20 S.D. 440
PartiesSTATE v. PRATT.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Lyman County.

Habeas corpus by Henry Pratt to obtain his release from imprisonment on a charge of perjury. From an order denying a writ petitioner appeals. Affirmed.

James Brown, for appellant. Philo Hall, Atty. Gen., Aubrey Lawrence, Asst. Atty. Gen., and Wm. Williamson, Jr. State's Atty., for the State.

CORSON J.

This is an appeal from an order of the circuit court of Lyman county denying the defendant, Henry Pratt, a writ of habeas corpus. The defendant and petitioner in his petition for a writ stated in substance that on July 5, 1905 a complaint was filed in a justice's court in Lyman county charging him jointly with two other persons with the commission of the crime of perjury; that he was arrested and on the 10th day of January, brought before the justice, and waiving an examination, he was held to answer the charge in the circuit court, and his bail fixed at $1,000; that on the 13th day of January, an information was filed charging him and the other two persons named as defendants with the commission of the said crime of perjury; that on the 15th day of January, the said information was dismissed by the state's attorney by leave of the court, and on the same day he filed a separate information against this petitioner charging him with the commission of said offense; that he appeared in said court and moved to vacate and set aside said information on the ground that he has not been held to answer to the charge therein contained, which motion was denied; that thereupon he demurred to said information which demurrer was by the court overruled. He then pleaded to said information and demanded an immediate trial; that the state's atttorney thereupon moved the court for a continuance of the cause until the next term of court on the ground of the absence of material witnesses which motion was granted, and said petitioner then demanded that the prosecution be dismissed, and he be discharged from custody which was denied by the circuit court and a petition herein was filed in said court for a writ of habeas corpus.

It is contended by the petitioner (1) that the second information filed by the state's attorney charging him individually with the crime of perjury was unauthorized for the reason that he had never had a preliminary hearing or appeared for a preliminary hearing upon that charge; (2) that the affidavits filed on the part of the state on the motion for a continuance did not show sufficient cause therefore, and (3) that he was entitled to his discharge under the provisions of section 630, Rev. Code Cr. Proc., which reads as follows "If a 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."

It is contended by the Attorney General in support of the trial court's decision that the first two grounds stated present questions as to errors of law occurring in the proceedings, reviewable only upon a motion for a new trial and upon writ of error, and do not constitute grounds for the issuance of a writ of habeas corpus, and (2) that the time at which the petitioner can claim his discharge under the statute has not yet arrived, as the continuance was granted at the term of the court in which the information was filed and that it is only when the continuance is granted at a subsequent term as provided in section 778, Rev. Code Cr. Proc., that he would be entitled to his discharge. That section reads as follows: "If any person shall be committed for a criminal or supposed criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner; if such court at the second term shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the state, and that there are reasonable grounds to believe that such evidence may be procured at the third term, they shall have power to continue such case till the third term; if any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the state are absent, such witnesses being...

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