State v. Reggio
| Decision Date | 07 April 1970 |
| Docket Number | No. 10732,10732 |
| Citation | 176 N.W.2d 62,84 S.D. 687 |
| Parties | STATE of South Dakota, Plaintiff-Respondent, v. Richard REGGIO, Defendant-Appellant. |
| Court | South Dakota Supreme Court |
Richard D. Hagerty, Yankton, for defendant-appellant.
Gordon Mydland, Atty. Gen., Leonard E. Andera, Asst. Atty. Gen., Pierre, for plaintiff-respondent.
The question presented on this appeal is whether an information must be dismissed because evidence obtained by an illegal search and seizure was introduced at the preliminary examination which was the basis for holding the defendant to answer the charge therein alleged.
When a quantity of cigarettes stolen from a retail store in Yankton, South Dakota, were discovered and seized in a search of the room which defendant shared with another, he was arrested and charged with the crime of grand larceny. He demanded a preliminary hearing which was held before the judge of the municipal court of that city acting as a committing magistrate. At such hearing the defendant was represented by retained counsel and the prosecution by the states attorney. Several witnesses testified for the state and were subjected to cross-examination on behalf of the defendant. Among them was a young lady who had worked with the defendant in the store from which the cigarettes were said to have been stolen, and its manager. Defendant offered no evidence.
One of the witnesses was a police officer who was present when the defendant's room was being searched. He objected to any testimony by the officer concerning the finding of the cigarettes on the ground that the search of his room during which they were discovered was unlawful. This was overruled. At the conclusion of the examination the magistrate held him to answer to the offense with which he was charged.
When arraigned in circuit court on the information charging him with the larceny of these cigarettes he entered a plea of not guilty, and moved that the evidence secured in the search of his room be suppressed on the ground that it was obtained by an unlawful search. After a hearing had thereon the motion to suppress was sustained. For the purpose of our review we pass the state's claim that the search was lawful and accept the trial court's determination.
About a week later, admittedly to avoid the waiver of his motion prescribed by SDCL 23--36--2, defendant asked for and was granted permission to withdraw his plea of not guilty. This was agreeable to the state. Defendant then made a motion to set aside the information because his commitment to answer thereto was based on illegally obtained evidence. This was denied.
At this stage his previously withdrawn plea of not guilty of the charge contained in the information was reinstated. On trial of the issues thus raised, the jury returned its verdict finding him guilty of grand larceny. The judgment entered thereon, from which he appeals, sentenced him to imprisonment in the reformatory section of our penitentiary. His sole claim here is that the described preliminary examination was constitutionally defective.
The right to a preliminary examination was unknown to the common law. It is not of constitutional origin, but is rather a creature of statute. SDCL 23--27--1. As such the legislature could have dispensed with it had it been so inclined. State v. Anderson, 60 S.D. 187, 244 N.W. 119. It is intended and designed to inquire concerning the commission of a crime and the defendant's involvement in it. Accordingly, there is no necessity for the entry of a plea, and no requirement that one be entered.
One of its principal purposes is to insure an accused that he will not be called upon to stand trial until a magistrate has determined after such examination that a public offense has been committed and that there is sufficient cause to believe the defendant guilty thereof. SDCL 23--27--16. Our statutes do not prevent a...
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State v. Heisinger
...intercourse. In South Dakota, the preliminary hearing is not of constitutional origin but is a creature of statute. State v. Reggio, 1970, 84 S.D. 687, 176 N.W.2d 62; and Janklow v. Talbott, 1975, S.D., 231 N.W.2d 837. The purpose of a preliminary hearing is to ascertain whether or not a pu......
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State v. Lohnes
...probable cause. He claims that it was improperly based on a confession subsequently ruled inadmissible in Lohnes I. In State v. Reggio, 84 S.D. 687, 176 N.W.2d 62 (1970), this court indicated that a probable cause determination at a preliminary hearing, based solely on illegally obtained ev......
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State v. Lufkins
...March 7, 1980. The right to a preliminary hearing is not of constitutional origin, but is rather a creature of statute. State v. Reggio, 84 S.D. 687, 176 N.W.2d 62 (1970); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). To warrant a reversal or dismissal of the case, appellant must show h......
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State v. Holiday
...and state constitutions. The right to a preliminary hearing is in itself a statutory, not a constitutional, right. State v. Reggio, 84 S.D. 687, 176 N.W.2d 62 (1970). SDCL 23A-4-3 is the State's counterpart of Rule 5 of the Federal Rules of Criminal Procedure (FRCRP). A review of the histor......