State v. Sonnenschein
| Decision Date | 16 March 1916 |
| Docket Number | 3871 |
| Citation | 156 N.W. 906,37 S.D. 139 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. HERMAN SONNENSCHEIN, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Stanley County, SD
#3871--Affirmed
Philip & Waggoner, Gaffy & Stephens
Attorneys for Appellant.
Clarence C. Caldwell, Attorney General
Byron S. Payne, Assistant Attorney General
F. W. Lambert, State's Attorney
Attorneys for the state.
Opinion filed March 16, 1916; Rehearing denied May 27, 1916
Defendant was convicted, in the circuit court of Stanley county; of the crime of grand larceny. From the judgment of conviction and an order denying a new trial, this appeal was taken.
Defendant moved the dismissal of the information filed in the circuit court because the preliminary hearing was held before a county judge. He contends that, under the Constitution of this state (section 21, art. 5), such officer was without authority to conduct such hearing. Such section provides that: "The county court shall not have jurisdiction in cases of felony." The statutes provide (chapter 186, Laws 1907) who are magistrates. Among those named are county judges. These magistrates have power to preside at preliminary hearings. Chapter 7, tit. 4, Code Cr. Proc. This provision of the Constitution relates to the jurisdiction of, the court as a trial court, and not to any other powers or duties that may be imposed upon the judge of such court: A preliminary, hearing is in no sense a trial. 8 R. C. L. § 67; Latimer v. State, 55 Neb. 609, 76 N.W. 207, 70 Am. St. Rep. 403. Such county judge, when sitting as a magistrate, is not sitting as a county court any more than would justice of this court, if sitting as a magistrate upon a preliminary hearing, be sitting as the Supreme Court, People v. Crespi, 115 Cal. 50, 46 Pac. 863.
Defendant moved to quash the information on the ground that at the time such information was filed and defendant arraigned no transcript of the evidence taken before the magistrate had been filed in the circuit court. Such a transcript was on file when such motion was presented, though the witnesses had not signed same. The motion was denied. One of the statutory grounds for quashing an information (section 263, Code Cr. Proc.) is because the defendant has not had a preliminary examination before the information was filed. Defendant had such an examination. He could not move to quash the information where, in fact, a preliminary hearing had been held. State v. Johnson, 34 S.D. 611, 149 N.W. 730.
Defendant objected to the jurisdiction of the trial court to proceed to the trial of this cause, contending that no term of court was in session. It appears that the term opened in October, and that it had been adjourned from time to time up to and until November 25th. Upon that date the following entry was made by the clerk:
Defendant contends that this was not an adjournment by the order of the court, and that the only power of the clerk is to be found in section 952, Pol. Code. This section confers powers upon the clerk, in the absence of the judge, to keep court open for four days from date set for opening a term. It has no application where the term, as in this case, had once been properly opened by the judge of the court. In such case the failure of the judge to appear on the day to which the court is adjourned does not cause a discontinuance of the term. 11 Cyc. 736. A full discussion of this question will be found in the following cases, all of which support the above: People v. Sullivan, 115 N.Y. 185, 21 N.E. 1039; In re Dorsett, 2 Okl. 369, 37 Pac. 1072; Schofield v. Cattle Co. (C.C.) 65 Fed. 433; Railway Co. v. Hand, 7 Kan. 380.
Defendant complains in that he was not allowed the statutory period of two days between verdict and passing sentence.
No sufficient objection was interposed in the trial court, and the matter is not properly before us.
Defendant moved for a continuance until the next regular term, that lie might have time to prepare for trial, and especially that he might procure the attendance of four certain witnesses alleged to be beyond the jurisdiction of the trial court. Numerous affidavits were filed in support of and in resistance to such motion. It would serve no useful purpose to set forth all the facts sworn to therein, and we note only those we consider most material. We are satisfied that, if defendant had used as much diligence during the two months elapsing after his arrest and before his trial in attempting to prepare for the trial of this cause as he used in striving to delay such trial, he would probably have been as fully prepared with his defense herein when it was called for trial as he could or would have been if it had not been called for trial until the time to which he sought the continuance.
The motion for continuance was to have been heard on December 4th, but was not owing to defendant's failure to be present. He had been advised but three days prior thereto that a judge would probably be present to hear such motion on or about that date. On December 4th, through his counsel, he was advised of the time when this cause would be reached for trial, and received personal notice thereof from his counsel on or about December 7th. There was sufficient from which the trial court could have found that on December 7th defendant had concluded to withdraw his motion for continuance, and so advised the attorneys for the state. On December 21st a large number of jurors were, with the knowledge of defendant's counsel, ordered to report on December 28th for the trial of this cause. Without any previous intimation of change in intent, the defendant presented his motion for continuance on December 24th.
At all times after the preliminary hearing defendant was fully advised as to the importance of the testimony of these four witnesses to procure whose presence or depositions such continuance was in part sought. One of such parties was a fugitive from justice. Another, one Lake, was alleged to be a resident of St. Paul and employed by a commission firm. No effort was shown to procure his attendance or deposition. In an affidavit dated December 24th, defendant said he could procure Lake's address and arrange to converse with him through a friend employed by the said company that employed Lake; that he had had no opportunity to converse with him by reason of the necessity of his remaining in attendance upon the court; that, if allowed time to do so, he would go to St. Paul and find Lake; that ordinary precaution in the preparation of this case necessitated conversing with Lake for the purpose of ascertaining the importance of his testimony; and that he believed he could arrange for the attendance of Lake at the next term, or, if not, could procure his deposition. On December 28th, immediately before this cause was called for trial, defendant filed another affidavit setting forth the fact that he was in St. Paul on December 18th on purpose to see Lake, but was unable to locate him. In this last affidavit defendant neither expresses any desire for, nor belief that he can obtain, the presence or deposition of Lake. Another of these parties was one Frazier, whose home was alleged to be at Claimore, Okl. Defendant on December 24th swore that he had not been able to communicate with and locate this party "within sufficient time to arrange for his depositions"; yet in his affidavit of December 28th defendant admits that he had acquired information of the whereabouts of Frazier "some time after the 7th day of December," and had obtained from him an agreement to meet him at Sioux City on December 19th. The affidavit shows that this agreement must have been reached prior to December 16th. Defendant swears that he met Frazier at Sioux City on December 21st. His only excuse for not arranging for the taking of Frazier's deposition at Sioux City was his belief that he could get him to attend as a witness at the trial, in which he was disappointed. While he swore that Frazier promised to attend at the next term of such court, he brought no written statement from Frazier to that effect; neither did he produce any written statement or affidavit from Frazier stating what he would swear to if a witness in such case. There was no showing, other than defendant's statement, that such a person as Frazier existed. The state questioned his existence and submitted some proof that might have created in the mind of the trial court a doubt as to whether such a person as Frazier existed. As to the fourth party, a Miss Philip, defendant failed to show such diligence in attempting to secure her attendance at the trial as the circumstances demanded of him. He also failed to show proper diligence, after the time when he claimed she had left the...
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