State v. Provost

Citation266 N.W.2d 96
Decision Date03 May 1978
Docket NumberNo. 12270,12270
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Purcell PROVOST, Defendant and Appellant.
CourtSupreme Court of South Dakota

Leann Larson Finke, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

Richard A. Johnson of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

The defendant appeals from his conviction of grand larceny and from his adjudication as an habitual offender. Defendant contends that he lacked the specific intent to commit larceny due to voluntary intoxication, and that the information filed against him was defective since it lacked an essential element of the crime. Regarding his habitual offender adjudication, it is asserted that various fingerprint exhibits should not have been admitted into evidence due to a lack of foundation, and that Exhibit No. 2B, a conviction record on an escape charge, should not have been admitted, since it did not describe a felony which is required under SDCL 22-7-1. He further claims there was an unreasonable and prejudicial delay from the time of his arrest until his arraignment. We affirm the convictions and sentence.

On November 24 the defendant, after deciding not to accompany his wife to her parents' home for Thanksgiving, hitchhiked to Yankton where he met a friend. The two of them consumed approximately two quarts of alcohol, at which time defendant began to engage upon a drunken escapade. At approximately 3:30 p. m. on the same day a lady came into the Medical Clinic Pharmacy and told the pharmacist, Mr. Robert Jones, that a man who appeared to be intoxicated had lurched in front of her car. Half an hour later, the pharmacist observed the same man, later identified as the defendant, laying down in the grass next to the entrance of the Medical Clinic. A few minutes later when going out to the parking lot the pharmacist noticed that his 1966 Volkswagen station wagon was gone.

When Mr. Jones phoned the police to report that his car had been stolen, he was informed that a subject driving a white Volkswagen had just been reported driving around in a ditch near Midwest Honda on Highway 52, west of Yankton.

Mr. Jones, Deputy Sheriff Hunhoff, and Jerry Kohoutek, the owner-manager of Midwest Honda, all identified the defendant as the person who was observed driving the white Volkswagen around in the ditch. Deputy Sheriff Hunhoff testified that at the time the defendant was arrested he was slumped, uncooperative, and abusive. The manager of the Honda shop concluded that the defendant was incoherent and not "in any shape to drive."

After being arrested on November 24, 1976, the defendant was not arraigned until December 2, 1976, supposedly because of the intervening Thanksgiving holiday. On December 8, 1976, the defendant sought a writ of habeas corpus from Judge Erickson on the grounds that he had not been brought immediately before a magistrate and informed of the charges against him, as required by statute. 1 The writ was denied, but Judge Erickson indicated that the application might be entertained at a later date if the defendant could establish that the delay had prejudiced him. The defendant did not renew the application until after the state had put on its case in chief at trial. The trial court denied the requested relief on the grounds that the defendant had not made a timely renewal of the application, and on the further ground that the defendant had failed to establish any prejudice caused by the delay in the arraignment.

The trial court instructed the jury as to intoxication of a defendant where a specific intent crime is committed. The defendant interposed no objection to the court's instructions. The jury returned a verdict of guilty of grand larceny.

Immediately following the return of the jury's verdict, a nonjury trial was had on Part II of the Information charging the defendant as an habitual offender. The state moved to amend the Information to read, "Chuck Hill, DCI Fingerprint Specialist" rather than "Jan Ridge," and to add the name of Officer Berneal Stratton of the Yankton Police Department. The defendant claimed surprise and prejudice, although defense counsel admitted that he had been informed by phone of the change in fingerprint specialists by both the Yankton County State's Attorney and Mr. Charles Dorothy, then Assistant Attorney General, the week before the trial. The state introduced fingerprint records and certified copies of judgments of conviction for prior felonies. After all the evidence had been received, the trial court found the defendant guilty of the crime of being an habitual criminal.

We first deal with the claimed error regarding the allegation of, and the proof of intent on the grand larceny charge. The Information stated that on November 24, 1976:

(D)id wilfully, unlawfully and feloniously by fraud or stealth take, steal and carry away certain personal property of the value in excess of $50.00 in good and lawful money of the United States of America, to-wit: a Volkswagon automobile bearing S.D. license number YA 5695, and which said property was then and there owned by Bob Jones in which (sic) said taking, stealing, and carrying away by said Defendant was without the consent and without the knowledge of the said owner thereof, and the said Defendant did then and there, and by said means, commit the crime of grand larceny.

Larceny is defined in SDCL 22-37-1 as the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof. It is undisputed that the property taken had a value greater than fifty dollars, and any larceny thereof would be classified as grand larceny under SDCL 22-37-2.

Defendant contends that the above information is defective in that it fails to state an essential element of the crime of grand larceny, that being the specific intent to deprive the owner of the use or ownership of his personal property.

Pertaining to criminal pleadings, technicalities have been abolished and it is only necessary to plead the offense in its usually designated name in plain, ordinary language. The general rule concerning the sufficiency of an information is that it must enable a person of common understanding to know what is intended from the language contained therein, and it must also apprise the defendant with reasonable certainty of the accusation against him, so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense. State v. Belt, 79 S.D. 324, 111 N.W.2d 588 (1961); State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455 (1947); State v. Lange, 82 S.D. 666, 152 N.W.2d 635 (1967); In Re Application of Kiser, 83 S.D. 272, 158 N.W.2d 596 (1968). Therefore, the question presented to this court is whether the information before us meets these requirements as set forth in State v. Lange, supra.

An information is sufficient if it employs the language of the statute or its equivalent, State v. Bayliss, 59 S.D. 585, 241 N.W. 608, State v. Thomas, 78 S.D. 568, 105 N.W.2d 549, State v. Judge, 81 S.D. 128, 131 N.W.2d 573, but it must at least in substance contain the necessary elements of the offense. State v. Paul, 41 S.D. 40, 168 N.W. 739; State v. Taylor, 44 S.D. 332, 183 N.W. 998. (Emphasis added.) State v. Lange, supra at 636.

It is obvious that the exact language of the statute was not followed for there is no specific mention of the element "with intent to deprive another thereof."

In State v. Halpin, 16 S.D. 170, 91 N.W. 605 (1902) this court was faced with the same question. In Halpin, the language used in the information is almost identical to that language used in Provost. 2 Also, the definition of larceny was the same in 1902 as it was in 1976. (See CL 1887, § 6780.) The Halpin Court stated:

(I)t has been held unnecessary in this jurisdiction to use the exact language of the statute, and an indictment for grand larceny, charging that the defendant 'did fraudulently and feloniously steal, take, and carry away' was held sufficient, on the probable theory that the language thus employed is equivalent to the expression, 'with intent to deprive another thereof.' Territory v. Anderson, 6 Dak. 300, 50 N.W. 124. Though to some extent informal, we think the information fairly imports all the elements of the crime of grand larceny, and, in ordinary and concise language, contains a statement of the acts constituting the offense, so as to enable a person of common understanding to know what is intended. Comp.Laws, § 7241. State v. Halpin, supra at 171, 91 N.W. at 605.

Other jurisdictions support the holding in Halpin that the exact language "with intent to deprive another thereof" is not needed in an information and that feloniously steal is equivalent to that element. In State v. Thibodeau, Me., 353 A.2d 595 (1976) it was held:

The intent to deprive the owner permanently of the property stolen inheres in the word 'steal' and in the expression 'steal, take and carry away,' and when such terms are used in a criminal accusation, it is not necessary to further charge therein the intent to deprive the owner permanently of his property. (Citations omitted.) See also State v. Miles, Mo., 412 S.W.2d 473 (1967).

Therefore, it would seem that since the information did state the words "feloniously take, steal, and carry away," this language under Halpin and Thibodeau is equivalent to the statutory language "with intent to deprive thereof." Consequently, the information is not fatally defective.

This brings us to the issue of whether there was sufficient evidence to support the jury's finding of specific intent. Even though Dr. Stephenson testified he did not feel that the defendant would have had the requisite specific intent because of his excessive intoxication, reading of the record indicates that the jury could have drawn an inference from the...

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21 cases
  • State v. Dace
    • United States
    • Supreme Court of South Dakota
    • April 27, 1983
    ...prejudice to the defendant, it will not constitute ground for reversal. State v. Brown, 285 N.W.2d 848 (S.D.1979); State v. Provost, 266 N.W.2d 96 (S.D.1978); State v. Keeling, 89 S.D. 436, 233 N.W.2d 586 (1975); State v. Rober, 86 S.D. 442, 197 N.W.2d 707 (1972). There was no indication of......
  • State v. Wilson, 12944
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    • Supreme Court of South Dakota
    • November 20, 1980
    ...therein." Defendant assigns this as error in failing to state the specific crime which defendant intended to commit. In State v. Provost, 266 N.W.2d 96 (S.D. 1978), we The general rule concerning the sufficiency of an information is that it must enable a person of common understanding to kn......
  • State v. Bartlett
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    • May 22, 1987
    ...and recorded on standard Division of Criminal Investigation forms are properly receivable into evidence as public records. State v. Provost, 266 N.W.2d 96 (S.D.1978). See also State v. Grooms, 359 N.W.2d 901 Moreover, a fingerprint expert testified, in his opinion, the Defendant's known pri......
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