State v. Seidschlaw

• Decision Date: 01 April 1981
• Docket Number: 13108,Nos. 13094,s. 13094
• Citation: 304 N.W.2d 102
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Thomas D. SEIDSCHLAW, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 102

304 N.W.2d 102

STATE of South Dakota, Plaintiff and Appellee, v. Thomas D. SEIDSCHLAW, Defendant and Appellant.

Nos. 13094, 13108.

Supreme Court of South Dakota.

Argued Oct. 17, 1980.

Decided April 1, 1981.

Steve Miller, Minnehaha County Deputy State's Atty., Sioux Falls, Joaquin K. Hanson, Minnehaha County State's Atty., Sioux Falls, on brief for plaintiff and appellee.

Steven W. Sanford, Cadwell, Brende & Sanford, Sioux Falls, for defendant and appellant.

WOLLMAN, Chief Justice.

Appellant was charged with two counts of murder as the result of an automobile accident. The trial court dismissed the murder counts at the close of the State's case but allowed the case to proceed on two counts of first-degree manslaughter. Appellant was found guilty by a jury on both counts and was sentenced to twenty-five years' imprisonment on each count, the sentences to run consecutively. We reverse and remand.

During the early morning hours of December 29, 1979, appellant was driving a motor vehicle in Sioux Falls when his erratic driving behavior attracted the attention of two Sioux Falls policemen. One of the policemen turned on the red lights of the police car to signal appellant to pull over to the side of the road. Instead of stopping, appellant forced a pickup truck off the road, turned off the lights on his car and accelerated away. A chase ensued.

Both the police car and appellant's vehicle reached high rates of speed as the policemen pursued appellant through various side streets. Appellant's vehicle often took up the entire street, fishtailing and striking curbs. Appellant failed to stop for a number of stop signs, and at one point went up over a curb, crossed a residential lawn and went out through some trees before returning to the street. Appellant's vehicle became airborne momentarily after crossing the intersection of 26th Street and Western Avenue.

As the chase progressed, other police units were notified. Two officers in a police car were able to turn onto 18th Street in front of appellant and attempted to stop appellant by not allowing him to pass. As the three vehicles approached the intersection of 18th Street and Minnesota Avenue, however, appellant accelerated and struck the rear of the police car in front of him, forcing the automobile into the intersection. Appellant then proceeded to make a left turn onto Minnesota Avenue.

The two police vehicles once again tried to force appellant to stop, but appellant accelerated and continued north on Minnesota Avenue. The officers then slowed down in view of the increased traffic in the area, but appellant continued to accelerate until he was exceeding sixty miles per hour. ¹ Appellant crossed several major intersections and failed to stop for a stoplight at 11th Street and Minnesota Avenue. As appellant approached the busy intersection of 10th Street and Minnesota Avenue, the light turned green for the 10th Street traffic, whereupon some vehicles started into the intersection. Appellant swerved to avoid one vehicle, but was unable to avoid it completely. Appellant's vehicle then struck the side of a small pickup truck containing two people, both of whom died as a result of injuries sustained in the accident.

Appellant contends that his request for a change of judge was improperly denied. We agree.

Appellant's trial was originally scheduled to be held before the Honorable Richard Braithwaite. Appellant's counsel was informed by letter dated February 20, 1980, that the trial would instead be held before the Honorable Robert J. Patterson on March 3, 1980. Appellant filed an affidavit for change of judge on February 27, 1980. The request for a change of judge was denied by written order dated February 28, 1980. Although this written order indicates that the affidavit was not timely filed, it does not enumerate the exact reasons why the affidavit was not timely. ²

SDCL 15-12-32 provides that the presiding judge shall assign the case to a different judge if "it is determined that the affidavit is timely and that the right to file the affidavit has not been waived or is not otherwise legally defective ...."

SDCL 15-12-27 provides in pertinent part:

Except as provided in § 16-12A-14 an affidavit for change of circuit judge or magistrate, if against the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, must be filed within the following times:

* * *

* * *

(2) If there is no such motion or application:

* * *

* * *

(b) In actions triable by a jury in the circuit court at least ten days prior to the date said action is scheduled for trial(.)

SDCL 15-12-28 provides as follows:

If the affidavit for change is against a judge or magistrate who is to preside who was not regularly scheduled to do so, the provision of § 15-12-27 shall govern if there be sufficient time after the party has knowledge or notice of such change of judge or magistrate, and if there is not sufficient time, the affidavit may be filed promptly after such knowledge or notice, but must be filed prior to the time set for the trial of such action.

SDCL 23A-41-5 adds three days to the time a party has the right or is required to do an act after the service upon him when the service is made by mail. ³ Appellant had the right to file an affidavit for change of judge upon receiving the February 20 letter, and if he desired to file such an affidavit he was required to do so not less than ten days before the day of trial if there remained sufficient time for him to do so. What, then, should be the effect of SDCL 23A-41-5 in such circumstances? In Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976), it was held that a statute virtually identical to SDCL 23A-41-5 added the prescribed additional time to the ten-day period within which a party is required by Arizona law to file an affidavit for change of judge after a case is first assigned to that judge. Although our rules speak in terms of requiring action within a certain time prior to a fixed event rather than within a certain time after the occurrence of an event, SDCL 15-12-27 requires compliance with that time limitation only if there is sufficient time available for such compliance. The purpose of SDCL 23A-41-5 is, of course, to make available the full time prescribed by statute or rule for taking action when service of a notice that commences the running of the time is made by mail.

We hold that SDCL 23A-41-5 had the effect of establishing February 23, 1980, as the date on which appellant received notice of the change of judge. Therefore, there was not sufficient time remaining for appellant to comply with the provisions of SDCL 15-12-27(2)(b) and appellant's affidavit for change of judge should accordingly have been treated as timely filed and a change of judge ordered.

Once a timely affidavit is filed, the judge sought to be disqualified must proceed no further in the action. SDCL 15-12-22. Because appellant had the right to have his case tried before a different judge, we must reverse his conviction and remand the case to the circuit court for new trial. State v. Henning, 3 S.D. 492, 54 N.W. 536 (1893); State v. Ash, 94 Idaho 542, 493 P.2d 701 (1971); State v. Sullivan, 486 S.W.2d 474 (Mo.1972); Norton v. Reese, 76 N.M. 602, 417 P.2d 205 (1966).

In view of our holding, we deem it necessary to discuss only two of appellant's remaining contentions.

Appellant contends that first-degree manslaughter was an improper charge in this case and that the proper charge should have been one of second-degree manslaughter.

Appellant was found guilty under SDCL 22-16-15, which provides in pertinent part:

Homicide is manslaughter in the first degree when perpetrated:

(3) Without a design to effect death, but by means of a dangerous weapon(.)

A dangerous weapon is defined as "any firearm, knife or device, instrument, material or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm(.)" SDCL 22-1-2(9).

The jury was also instructed on second-degree manslaughter, defined by statute as "(a)ny reckless killing of one human being by the act or procurement of another which ... is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide ...." SDCL 22-16-20.

Appellant contends that the applicable statutes must be interpreted as requiring the definition of dangerous weapon to be limited in the case of instrumentalities not inherently dangerous to those situations where the weapon is used with a specific intent to cause harm. We do not agree.

Although an automobile is not calculated or designed to inflict death or serious bodily harm, it can be used in a manner that is likely to inflict death or serious bodily harm and, when so used, it constitutes a dangerous weapon within the meaning of SDCL 22-1-2(9).

The question, then, is whether, in a motor vehicle homicide, there is any distinction between first-degree manslaughter (SDCL 22-16-15), homicide by means of a dangerous weapon, here an automobile, and second-degree manslaughter (SDCL 22-16-20), the reckless killing of a human being. We conclude that there is a distinction and that the jury was properly allowed to consider the first-degree manslaughter charge.

"(O)ne of the primary rules of statutory and constitutional construction is to give words and phrases their plain meaning and effect...." Board of Regents v. Carter, 89 S.D. 40, 46, 228 N.W.2d 621, 625 (1975). The key word in the definition of dangerous weapon is "likely." Within the context of the present case, the word "likely" should be defined as "probably," or "in all probability." See Black's Law Dictionary (5th ed. 1979); Webster's Third New International Dictionary (1976); Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362, 365 (1953). This Court has, by implication, used "likely" and "in all probability" s...