State v. Sinnott

• Decision Date: 30 December 1947
• Docket Number: 8881.
• Citation: 30 N.W.2d 455,72 S.D. 100
• Parties: STATE v. SINNOTT et al.
• Court: South Dakota Supreme Court

30 N.W.2d 455

72 S.D. 100

STATE v. SINNOTT et al.

No. 8881.

Supreme Court of South Dakota

December 30, 1947

Sigurd Anderson, Atty. Gen., and Charles P. Warren Asst. Atty. Gen., for plaintiff and respondent.

T B. Thorson and E. W. Christol, both of Rapid City, and Padway, Goldberg & Previant, of Milwaukee, Wis., for defendants and appellants.

ROBERTS Judge.

Defendants were convicted upon the second count of an information which charges that at Rapid City, South Dakota, on the 26th day of November, 1945, defendants 'did then and there wilfully unlawfully and feloniously commit the crime of conspiring to intimidate employees, in that at said time and place the said defendants William Sinnott and Reuben Schuler did conspire to prevent the hired workmen of the Buckingham Transportation Company, from performing their work in that they did, at the town of Wall, in said Pennington County, State of South Dakota, on the 26th day of November, 1945, wrongfully wilfully, and unlawfully commit assault and battery on the persons of Porter B. Buckingham and Ralph Hancock.' They urge as ground for reversal that the court erred in overruling their demurrers to the information and in denying their motions in arrest of judgment. They also assign as error that defendant Sinnott was compelled to give evidence against himself and that the evidence was insufficient to establish a conspiracy.

Defendants assert that the information does not state an offense known to the law; that it does not allege the purpose or object of the conspiracy; and that there is no allegation of an overt act to effect the object of the conspiracy.

Defendants were convicted of violating that portion of the conspiracy statute, Chap. 45, Laws 1941, which provides: 'If two or more persons conspire, either to commit any offense against the State of South Dakota, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than Ten Thousand Dollars ($10,000.00), or imprisoned in the State Penitentiary for not more than Five (5) years, or both.'

The offense against the state sought to be charged as the object of the conspiracy is the violation of the provisions of SDC 13.1824, which reads: 'Every person who by any use of force, threats, or intimidation, prevents or endeavors to prevent any hired foreman, journeyman, workman, laborer, servant, or other person employed by another from continuing or performing his work or from accepting any new work or employment, or induces such hired person to relinquish his work or employment, or to return any work he has in hand before it is finished, is guilty of a misdemeanor.'

It is essential to the validity of an information under the Constitution that it shall advise the accused of the 'nature and cause of the accusation against him.' Constitution, Art. 6, § 7. The rules of criminal pleading have yielded to simplification of statement and the elimination of technical formalities. SDC 34.30. It is fundamental, of course, that the exercise of the power to prescribe, change or modify the form or manner of stating a charge in a criminal process is limited and controlled by the Constitution. State v. Reidt, 54 S.D. 178, 222 N.W. 677. This court has held that an information designating an offense in such a manner as to enable a person of common understanding to know what was intended in compliance with the provisions of the statute now designated at SDC 34.3010(6) was sufficient to comply with the provisions of the Constitution, but did not consider how far the exercise of such power might go in simplifying indictments and informations before encountering the constitutional limitation. State v. Morse, 35 S.D. 18, 150 N.W. 293, Ann.Cas.1918C, 570. It has been frequently declared in substance that an information or indictment must apprise the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense. 27 Am.Jur., Indictments and Informations, §§ 57 and 58. The question therefore presented is whether the information before us sufficiently meets these requirements.

The language of the conspiracy statute, Chap. 45, Laws 1941, was adopted from the federal act, 18 U.S.C.A. § 88. It is apparent from a reading of these statutes that a conspiracy to commit an offense is a different crime than the offense that is the object of the conspiracy. It has been repeatedly declared in federal decisions that an indictment or information must state the object or purpose of the conspiracy, but that it is not necessary to allege the contemplated crime with the technical precision and particularity requisite to an indictment or information for such substantive offense. Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Thornton v. United States, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013; Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 301, 71 L.Ed. 545. In the case last cited, the court said: 'It is well settled that in an indictment for conspiring to commit an offense--in which the conspiracy is the gist of the crime--it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense * * *. In charging such a conspiracy 'certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary.'' In the light of the foregoing authorities, we think that the information sufficiently alleges the object or purpose of the conspiracy. The information charges that defendants conspired to 'intimidate employees, in that at said time and place the said defendants William Sinnott and Reuben Schuler did conspire to prevent the hired workmen of the Buckingham Transportation Company, from performing their work.' The gist of the offense prohibited by Section 13.1824, supra, is the use of force, threats, or intimidation to prevent any employee from performing his work or to attempt to so prevent. Even if it be assumed that the information does not describe the contemplated crime with the accuracy requisite to the commission of the crime itself, it does sufficiently identify the crime which defendants are charged to have intended to commit.

There must be an overt act to satisfy the conditions of the statute. In Joplin Mercantile Co. v. United States, 236 U.S. 531, 35 S.Ct. 291, 293, 59 L.Ed. 705, the court said: 'It is true * * * that a mere conspiracy, without overt act done to effect its object, is not punishable criminally under § 37 of the Criminal Code (18 U.S.C.A. § 88). But the averment of the making of the unlawful agreement relates to the acts of all the accused, while overt acts may be done by one or more less than the entire number, and although essential to the completion of the crime, are still, in a sense, something apart from the mere conspiracy, being 'an act to effect the object of the conspiracy.'' Under the provisions of Chapter 45, Laws 1941, and SDC 34.3637, some act by one or more of the conspirators 'to effect the object of the conspiracy' must be alleged and proved.

Counsel argue that while the information charges that defendants did 'wrongfully, wilfully and unlawfully commit assault and battery on the persons of Porter B. Buckingham and Ralph Hancock' it does not charge that this was done in furtherance and pursuance of the unlawful agreement or, in other words, 'to effect the object of the conspiracy.' It is said that such violation of law is alleged as a part of the unlawful agreement and that it does not appear that there was a conspiracy to operate in the future. The information as heretofore pointed out charges a conspiracy to commit a crime which is sufficiently identified. There was then a meeting of the minds on a plan of...