State v. Swenson
| Decision Date | 11 June 1904 |
| Citation | 99 N.W. 1114,18 S.D. 196 |
| Parties | STATE ex rel. KOTILINIC v. SWENSON, Warden. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County.
Habeas corpus by the state, on the relation of Frank Kotilinic against O. S. Swenson, to obtain relator's discharge from imprisonment. From an order quashing the writ, relator appeals. Affirmed.
Joe Kirby, for appellant. Philo Hall, Atty. Gen., for respondent.
This appeal is from an order of the circuit court remanding appellant to the custody of the warden of the state penitentiary. From the warden's return to the writ of habeas corpus it appears that the appellant is detained under and by authority of a judgment of imprisonment for life rendered by the circuit court within and for Buffalo county upon a conviction for murder.
It is contended that the appellant's detention is unlawful (1) because the indictment upon which he was convicted is not sufficient to sustain the judgment under which he is held and (2) because it does not appear from the minutes of the court that appellant "was present at the alleged trial at any time between the 5th and 8th day of June, during which the trial proceeded." The indictment, omitting the title of the action, reads as follows: "The grand jurors of the state of South Dakota within and for the county of Buffalo duly and legally impaneled, charged and sworn according to law in the name and by the authority of the state of South Dakota, upon their oaths present: That Frank Kotilinic, late of said county, on the 27th day of January, in the year of our Lord one thousand nine hundred and one, at the county of Buffalo and state of South Dakota, with force and arms, wilfully, unlawfully, feloniously, with malice aforethought, and with a premeditated design to effect the death of Tony Kotilinic, a human being, did then and there make assault upon the said Tony Kotilinic; and that the said Frank Kotilinic, with a certain pistol loaded with gunpowder and bullets, did then and there wilfully, unlawfully, feloniously, with malice aforethought, and with a premeditated design to effect the death of said Tony Kotilinic, shoot and mortally wound the said Tony Kotilinic, of which mortal wound the said Tony Kotilinic, on the 29th day of January, A. D. 1901, at the said county of Buffalo, did die, 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." As we understand the argument of counsel, the objections urged to the pleading are these: (1) It does not contain a direct formal charge of murder; (2) it fails to aver that defendant held the firearm in his hand; (3) it fails to aver that he discharged the contents thereof into the person of the deceased; and (4) it fails to state what part of the body was wounded, so the court might determine whether the wound was mortal. It may be necessary, at common law, in an indictment for murder, to state, as a conclusion from facts previously averred, that the defendant "feloniously did kill and murder," or something equivalent thereto, but such a formal conclusion is not required in this jurisdiction. Here all the forms of pleading in criminal action and rules by which the sufficiency of pleadings is to be determined are those prescribed by the Code of Criminal Procedure. Rev. Code Cr. Proc. § 219. Id. § 221. It is sufficient if the statement of the acts constituting the 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." Id. § 229. It is "the acts constituting the offense," not the conclusion of the pleader as to what crime such acts constitute, which is required. Facts are demanded, not conclusions of law, or obsolete technical phrases. The principal office of the indictment is to inform the accused of the "nature and cause of the accusation against him"; to be thus informed being one of his most important constitutional rights. State Const. art. 6, § 7. How can the required object be better attained than by stating the acts constituting the alleged offense "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." Our rules of pleading in criminal actions are simple, sensible, and clearly constitutional.
The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning. Rev. Code Cr. Proc. § 227. In the indictment under discussion it is alleged, in substance, that the accused did shoot and mortally wound the deceased with a certain loaded pistol, of which mortal wound the deceased died on the second day after receiving such wound. An established definition of the word "shoot" is "to strike with anything shot; to hit with a missile often, to kill or wound with a firearm; followed by a word denoting the person or thing hit, as an object." Web. Dict. The fact that the death of the deceased was caused by means of a bullet intentionally fired into his body by the accused could not be more "clearly and distinctly set forth" than it is by the "ordinary language" found in this indictment. No person of "common understanding" could possibly fail "to know what was intended." In states where the common-law rules of pleading prevail it may be necessary, on authority, to aver in what part of the body the wound was received; but, though the place of the wound be alleged, whether necessarily or not, it is sufficient to prove that it was in any part producing the death averred. Bishop, New Cr. Proc. § 521. And, since the place of the wound need...
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