State v. Reidt

• Decision Date: 05 January 1929
• Docket Number: 6309,6609.
• Citation: 222 N.W. 677,54 S.D. 178
• Parties: STATE v. REIDT.
• Court: South Dakota Supreme Court

222 N.W. 677

54 S.D. 178

STATE v. REIDT.

Nos. 6309, 6609.

Supreme Court of South Dakota

January 5, 1929

Appeal from Circuit Court, Hyde County; James McNenny, Judge.

Dwight Reidt was convicted of perjury, and he appeals. Affirmed.

C. E Noel, of Highmore, and McNamee, O'Keeffe & Stephens, of Pierre, for appellant.

Buell F. Jones, of Britton, and Bernard A. Brown, of Sioux City Iowa, for the State.

BROWN J.

Defendant appeals from a conviction of perjury, and the question before the court at this time is the sufficiency of the information to sustain the conviction, Defendant demurred to the information on the ground that it did not state a public offense, and also because it stated six separate offenses and moved for an arrest of judgment on the same grounds. The information, after the usual preliminary averments, alleged that defendant on December 3, 1925, committed the crime of perjury, as follows:

"That the said Dwight Reidt at the said time and place, having taken an oath that he would testify, declare, and depose truly before a competent tribunal in a case in which such an oath may by law be administered, did willfully and contrary to such oath state material matter which he knew to be false in that on the said 3rd day of December, 1925, in an action pending in the circuit court in and for Hyde County, South Dakota, in the Sixth Judicial Circuit, with Hon. John F. Hughes, Judge of the said Court, presiding in an action entitled the State of South Dakota v. Harold Farlee, Ray C. Carothers, Dwight Reidt, and Otto Reidt, Defendants, and in which case an oath was by law administered by James Buchan, Clerk of Courts, to the said defendant Dwight Reidt and the said defendant Dwight Reidt having therein taken his oath that he would testify truly and the said Dwight Reidt did willfully and contrary to such oath falsely state under oath that he had not been engaged in the handling of intoxicating liquors in any manner or capacity; that he had never owned a still for the manufacturing of intoxicating liquor; that on the 28th day of May was the first time he ever saw the still which was Exhibit 'A' in that case and that he happened to see the still at that time because Farlee hired him and Carothers to take some lumber over to where the still was; that he did not have anything to do with the taking of the equipment for the manufacture of liquor to the cave referred to in that case; that he did not have anything to do with helping to dig the cave, which false testimony related to material matter in the cause pending in which such testimony was given contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of South Dakota."

As relating to the charge in an information, it is sufficient if the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended. R. C. § 4725. In an information for perjury it is sufficient to set forth the substance of the controversy in regard to which the offense was committed, in what court the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned. R. C. § 4732. Defendant contends that an assignment of perjury necessarily requires not only that the testimony alleged to have been given was false, but, by way of antithesis, must set forth what the truth was. This prolixity was characteristic of common-law indictments for perjury, but is not required under our statutes. Where the false testimony alleged to have been given is in simple and direct form, no strength can be added to the charge that such statements were false by asserting that the contrary was the truth. United States v. Howard (D. C.) 132 F. 325; State v. Bingham, 124 Kan. 61, 257 P. 951.

It is contended that the provision in R. C. § 4732, that in an indictment for perjury it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, requires that the substance of the controversy must be set forth in the information, otherwise it is fatally defective. The section does not provide that the substance of the controversy must be set forth in any particular manner or at any particular length, nor does it even positively require that the substance of the controversy shall be set forth. It simply says that it shall be sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and that pleadings, record, or proceedings in such controversy need not be set forth. Section 4717 provides that an information shall be sufficient which contains he title of the case, the name of the court in which it is presented, the names of the parties and the offense charged, in the language by which the crime is usually designated; as, in the case of murder, that the accused (naming him) did, at a time and place stated, feloniously, wilfully, and with malice aforethought, murder a human being (naming him); and that this form of pleading shall apply to all prosecutions for the commission of any public offense, and it shall be competent to prove the manner in which the crime was committed as if all the facts constituting the crime had been fully set forth in the information.

Except in so far as it may be limited by the Constitution, the Legislature had power to enact that an indictment or information in the form prescribed by this section should be sufficient, and the only limitation in the Constitution...