State v. Shields

• Decision Date: 29 August 1900
• Citation: 13 S.D. 464,83 N.W. 559
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. JAMES SHIELDS, Plaintiff in error.
• Court: South Dakota Supreme Court

13 S.D. 464

83 N.W. 559

STATE OF SOUTH DAKOTA, Defendant in error,

v.

JAMES SHIELDS, Plaintiff in error. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W, Jones, Judge Affirmed. Keith & Warren Attorney for plaintiff in error. John L. Pyle. Attorney General Charles P. Bates, States Attorney Attorneys for defendant in error. Opinion filed August 29, 1900

HANEY, J.

Defendant was convicted of the crime of assault with intent to commit felony. The information (omitting formal parts) is as follows:

“That James Shields, late of said county, yeoman, on the 13th day of December, in the year … 1899, at the county of Minnehaha and. State of South Dakota, aforesaid, in and upon one Gustave Dreger did then and there willfully, unlawfully, and feloniously, and with force and arms, make an assault, with the intent certain personal property, viz, current. money of the United States to the amount and of the value of one dollar, and one watch and chain of the value of forty dollars, all of which said personal property was then and there the property of and in the possession of, said Gustave Dreger, from the person and against the will of the said Gustave Dreger then and there unlawfully, willfully, and feloniously, by means and use of force, to steal, take, and carry away.”

It is conceded that the prosecution is under the following section of the Penal Code (Comp. Laws, § 6192):

“Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The contention that the information fails to charge a public offense is untenable. The act charged as an offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, Comp. Laws, § 7249. The form of the information has the support of high authority, McClain, Cr. Law, § 270, 281; Whart. Prec, Ind. § 251. There is a marked distinction between the case of State v. Watson (Wash.) 27 Pac. 226, cited by defendant’s counsel, and the one at bar. In that case no intent whatever was charged in the body of the complaint, and the court very properly held that the accused could be sentenced only for a simple assault. It is contended that the only offense proven, if any, was an assault The testimony of the prosecuting witness on his direct examination is not contradicted in any material respect. It is as follows:

“My name is Gustave Dreger. I live at Geneva, Iowa. Have lived there four years. I came from Illinois, Have been threshing four years,—steam rig threshing machine. My business has been working on farm. I came from Geneva up here to see George Lamb. I worked for his father in Illinois. Lamb lives eight miles west of Sioux Falls. He is a brother-in-law of Louis Bauch. Was visiting a couple of days with George, and helping Gus Stevens, working a month for him picking corn, I came to town last Wednesday. I got through working there. I was going to Iowa, to leave my clothes there. I was going to settle up, and stay a spell. Came to town about two o’clock, After I came to town, I walked around, and drank a couple of beers. The defendant met me, I guess. I didn’t pay any attention to him. I treated him beer. First met him on the street some place, I treated him some beer at Zentel’s saloon, After we met, and I bought the beer for defendant, he stayed with me. Then it was after three or four o’clock. I went down to the Illinois Central to buy a ticket. Defendant went with me. I bought my ticket, and sat down on the seat, and went to sleep, and when I woke up he told me, ‘Your train is gone.’ I says, ‘Then, I can’t help it,’ He came to me, and said, ‘Your train is gone.’ He was still in the depot. I opened my watch to get the time, and he says, ‘You got a nice watch.’ That was when we came out of the depot on the sidewalk. He says, ‘You have got a nice watch.’ I says, ‘Yes it is a good watch for me.’ Then we went in town. He followed me,—came after me,—and I treated him again to a couple of beers. We walked around on the street. Then he said, ‘You wait...