State v. Ruffing, 9838

Decision Date21 October 1960
Docket NumberNo. 9838,9838
Citation105 N.W.2d 541,78 S.D. 556
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Joseph John RUFFING, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Dudley R. Herman, Gregory, for defendant and appellant.

Parnell J. Donohue, Atty. Gen., Charles Poches, Jr., Asst. Atty. Gen., for plaintiff and respondent.

HANSON, Judge.

Joseph John Ruffing was charged with and tried for the crime of second degree rape in the Circuit Court of Gregory County. He was found guilty of the lesser included offense of assault with intent to commit rape upon which verdict he was sentenced to five years in the State Penitentiary. Sentence was imposed and judgment entered on December 18, 1958. Later the same day the State's Attorney filed a supplemental information alleging that defendant had previously been convicted of the following felonies: Escape, Obtaining Money Under False Pretenses, and Grand Larceny. Upon his plea of guilty defendant's sentence was increased to ten years and the previous five-year sentence vacated. He appeals.

Defendant's principal contention is that he was not fully and properly advised of his rights in the supplemental proceedings in which his sentence was enhanced.

Our habitual criminal statute does not create a new or separate offense. It merely authorizes enhanced penalties for habitual offenders in the discretion of the trial court. Proceedings thereunder are prescribed by Subsection 3 of SDC 13.0611 as follows:

'If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth herein, it shall be the duty of the state's attorney of the county in which such conviction was had to file an information accusing the said person of such previous convictions. Whereupon, the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall request such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer or remains silent, his plea or the fact of his silence shall be entered of record and a jury shall be empanelled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person, the court shall sentence him to the punishment prescribed herein, as the same may apply, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated. Whenever it shall become known to any warden or prison, probation, parole, or police officer or other peace officer that any person charged with or convicted of a felony has been previously convicted within the meaning of this statute, it shall become his duty forthwith to report the facts to the state's attorney of the county.'

At his trial defendant was represented by court-appointed counsel, William C. Grady. Such counsel, however, did not appear or represent defendant at the supplemental arraignment. The record of such arraignment shows the following proceedings:

'Mr. Donohue: May the record show that the defendant is being furnished with a copy of the Information.

(a copy of the Information is handed to defendant)

(the Information is read by State's Attorney)

'The Court: Mr. Ruffing, you have heard the Information under the habitual criminal act read to you and I presume you have a copy of it in your hand. Now do you have a lawyer representing you at this time?

'Mr. Ruffing: No.

'The Court: Do you want a little time to consult with a lawyer?

'Mr. Ruffing: Yes.

'The Court: Very well, we will be in recess for approximately 30 minutes and you can see what you want to do about this new charge.

(recess for approximately 30 minutes)

'The Court: Let the record show that after recess there appeared in Court the defendant, together with his counsel, Dudley Herman and the officers of this Court and thereupon the following proceedings were had:

The defendant may rise.

Mr. Ruffing, do you have a lawyer representing you at this time?

'Mr. Ruffing: Mr. Herman.

'The Court: I wonder, Mr. State's Attorney, if you wish to arraign the defendant at this time?

'Mr. Donohue: The defendant has been arraigned. All there is is to sentence him.

'Mr. Herman: I was here.

'The Court: Let the record show that the counsel, Dudley R. Herman was present at the reading of the Information and has waived any further reading of the information and states for the record he is now appearing for Joseph John Ruffing as counsel.

'The Court: Are you attorney for Mr. Ruffing in this matter, Mr. Herman?

'Mr. Herman: Yes, I am.

'The Court: Mr. Ruffing, are you ready at this time to...

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8 cases
  • Davis v. Bennett
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 28, 1968
    ...Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710, 715 (1960); Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947); State v. Ruffing, 78 S.D. 556, 105 N.W.2d 541 (1960); and the Supreme Court of the United States has consistently recognized the principle that state recidivist statutes go only ......
  • State ex rel. Ruffing v. Jameson
    • United States
    • South Dakota Supreme Court
    • October 9, 1963
    ...the five-year sentence was vacated and he was sentenced to ten years imprisonment. On appeal, this court affirmed. State v. Ruffing, 78 S.D. 556, 105 N.W.2d 541. Some time thereafter, he applied to one of the judges of the second judicial circuit, wherein the penitentiary is situated, for a......
  • State v. Holiday
    • United States
    • South Dakota Supreme Court
    • June 8, 1983
    ...upon one who is found to have the status of a habitual criminal. State v. DeMarsche, 68 S.D. 250, 1 N.W.2d 67 (1941); State v. Ruffing, 78 S.D. 556, 105 N.W.2d 541 (1960).... Whether or not an accused is a habitual offender has no relation to the trial for the charge against him, for the ha......
  • Blackpipe State Bank v. Grass
    • United States
    • South Dakota Supreme Court
    • October 21, 1960
  • Request a trial to view additional results

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