State v. Sewell

• Decision Date: 16 December 1943
• Docket Number: 8632.
• Citation: 12 N.W.2d 198,69 S.D. 494
• Parties: STATE v. SEWELL
• Court: South Dakota Supreme Court

12 N.W.2d 198

69 S.D. 494

STATE v. SEWELL

No. 8632.

Supreme Court of South Dakota

December 16, 1943

Louis H. Smith, of Sioux Falls, for appellant.

George T. Mickelson, Atty. Gen., and Charles P. Warren, Asst. Atty Gen., Elmer G. Engebretson, State's Atty., of Webster Day County, and Frank S. Tait, of Milbank, for respondent.

SMITH, Judge.

The defendant Paul J. Sewell has appealed from a judgment imposing the death sentence founded upon his plea of guilty of the crime of murder, and from an order denying his motion, made after judgment, that the judgment be vacated and he be permitted to change his plea.

Of the several propositions assigned and argued, but one requires consideration, viz., that the court erred in receiving the plea of defendant without having advised him of his rights in the premises.

One Jens Jensen, late of Day County, was shot and instantly killed on November 3, 1941. The circumstances indicated that he was murdered and that the defendant may have committed the crime. Defendant was taken into custody on that day, and on November 6, without having had the advise of counsel, he signed a written confession. On November 8, 1941, he waived preliminary examination and was bound over to the circuit court. Later in that day an information was lodged in circuit court charging defendant with the crime of murder and he was taken before the court for arraignment. We quote from the minutes of the court as recorded by the official reporter.

"Mr. Engebretson: If the Court please, I have an arraignment which I desire to make.

"The Court: Very well. The defendant will stand up and you may read the information."

(Thereupon the information was read by the state's attorney.)

"By the Court:

"Q. Is Paul Sewell your true name? A. It is.

"Q. Have you got a lawyer? A. No, I haven't.

"Q. If you wish you are entitled to have a lawyer to represent you in all the proceedings. A. I wish to waive that right.

"Q. You do not care to have a lawyer at all? A. No.

"Q. Mr Sewell, you have heard the information read against you? A. Yes.

"Q. Are you ready at this time to enter your plea? A. I am.

"The Court: The State's Attorney of this county has made and filed an information against you charging that on the third day of November, 1941 in the county of Day and state of South Dakota, you committed the crime of murder committed as follows: That at said time and place the said defendant, Paul Sewell, then and there being, did wilfully, unlawfully, feloniously, with a premeditated design to effect the death of one Jens Jensen, and with malice aforethought, did shoot and kill the said Jens Jensen who was then and there a human being, with a dangerous and deadly weapon, to-wit: a revolver loaded with powder and leaden bullets, which said revolver was shot off and discharged by the said Paul Sewell at, against and into the head of the said Jens Jensen, and that the leaden bullets therefrom did strike, penetrate and pass through the head of the said Jens Jensen, inflicting mortal wounds on and in the head of the said Jens Jensen, of which mortal wounds the said Jens Jensen died on the 3rd day of November, 1941, in the said county and state aforesaid, all this 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. To the charge contained in that information what is your plea, guilty or not guilty. A. Guilty, your Honor.

"The Court: A plea of guilty will be entered."

Thereupon the court questioned the defendant, the sheriff and the coroner. In answer to the court's questions the defendant repeated the contents of his written confession. After a ten minute recess the court indicated that he was about to impose a death sentence. Before sentence was passed, however, the defendant interrupted, repudiated his confession, denied that he had killed Jens Jensen, stated that his confession was made up to protect the widow and daughter of the deceased, and said, "I don't see that I can go through with it and let them break my neck for something I didn't do. I expected when I entered that plea to get a life sentence. I expected to sacrifice my life to keep certain things from getting out. I was willing to do that. That is all." Nevertheless, after some further questions, the court sentenced defendant.

The arraignment of a defendant who, having been charged with a public offense and held to answer by a committing magistrate desires to enter his plea of guilty of such offense, is authorized by SDC 34.2301. Upon such an arraignment, it is the duty of the presiding judge, before permitting an entry of the plea of guilty, "*** to fully advise such person of his rights in the premises, and if it appears to the satisfaction of such judge that the accused has been regularly held to answer upon the offense charged and is acting of his own free will...