State v. Thomlinson, No. 9801

CourtSupreme Court of South Dakota
Writing for the CourtHANSON
Citation100 N.W.2d 121,78 S.D. 235
Decision Date09 January 1960
Docket NumberNo. 9801
Parties, 77 A.L.R.2d 1229 STATE of South Dakota, Plaintiff and Respondent, v. James W. THOMLINSON, Defendant and Appellant.

Page 121

100 N.W.2d 121
78 S.D. 235, 77 A.L.R.2d 1229
STATE of South Dakota, Plaintiff and Respondent,
v.
James W. THOMLINSON, Defendant and Appellant.
No. 9801.
Supreme Court of South Dakota.
Jan. 9, 1960.

[78 S.D. 236] Acie W. Matthews, Sioux Falls, for defendant and appellant.

Parnell J. Donohue, Atty. Gen., for plaintiff and respondent.

HANSON, Judge.

The defendant, James W. Thomlinson, appeals from a conviction of burglary in the third degree. Instead of filing a brief the Attorney General concedes error. We agree the conviction cannot be sustained, and a new trial must be granted.

Thomlinson was charged with burglarizing the Bennett County Cooperative Association. Over defendant's timely challenge at least one member of this Cooperative was allowed to sit on the jury. The challenge should have been sustained and all members of the Association removed

Page 122

from the jury list. Membership in the Cooperative alleged to have been burglarized clearly constituted a disqualifying interest on the part of such jurors within the contemplation of SDC Supp. 33.1311(5). It was immaterial how such membership was obtained.

The defendant also contends the trial court denied him his constitutional right to defend 'in person'. The record certified to us does not contain a transcript of the arraignment proceedings. It does appear, however, that defendant conducted his preliminary hearing without counsel. When he appeared for arraignment in Circuit Court without counsel the court, on its own motion, appointed an attorney to confer and consult with him. Thereafter defendant pleaded not guilty and appeared at the trial in person and with his court-appointed counsel.

After the jury was impaneled and the opening statement made by the State's Attorney, Thomlinson informed the court he had never requested an attorney to represent him; he did not want one; an attorney had been forced upon him; and he desired to defend himself in person. He then requested permission to make his opening statement to the jury himself. The attorney appointed to confer [78 S.D. 237] and consult with defendant concurred in his statement and request. The request was denied by the court. Thereupon Thomlinson stated he was 'discharging this lawyer in the presence of the people in this case and taking the case on myself'. The court refused to honor the dismissal whereupon the court-appointed attorney stated if he were in any way responsible for the case he wanted to make an opening...

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37 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Junio 1970
    ...Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, 444 (1949); State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960); In re Trevithick, supra, 131 N.W.2d at 441; S.D.Comp.Laws § 23-2-7 (1967); and S.D.Code of 1939 § 34.2905 (Supp.1......
  • Faretta v. California, No. 73
    • United States
    • United States Supreme Court
    • 30 Junio 1975
    ...480, 53 N.E.2d 356; State v. Pritchard, 227 N.C. 168, 41 S.E.2d 287; State v. Hollman, 232 S.C. 489, 102 S.E.2d 873; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121; State v. Penderville, 2 Utah 2d 281, 272 P.2d 195; State v. Woodall, 5 Wash.App. 901, 491 P.2d 680. See generally Annot., 77......
  • Turner v. Roman Catholic Diocese, No. 08-003.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 9 Octubre 2009
    ...is when the corporation is a party."); (collecting cases involving members of nonprofit utility cooperatives); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960) (members of cooperative association, which was the victim in this burglary prosecution, are disqualified from serving o......
  • State v. Asmussen, No. 23477.
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 2006
    ...411 N.W.2d 665, 666 (S.D. 1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121 (1960) (citing SD Const. art VI, § 2). In order for a defendant to exercise the right to self-representation and waive the rig......
  • Request a trial to view additional results
37 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Junio 1970
    ...Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, 444 (1949); State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960); In re Trevithick, supra, 131 N.W.2d at 441; S.D.Comp.Laws § 23-2-7 (1967); and S.D.Code of 1939 § 34.2905 (Supp.1......
  • Faretta v. California, No. 73
    • United States
    • United States Supreme Court
    • 30 Junio 1975
    ...480, 53 N.E.2d 356; State v. Pritchard, 227 N.C. 168, 41 S.E.2d 287; State v. Hollman, 232 S.C. 489, 102 S.E.2d 873; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121; State v. Penderville, 2 Utah 2d 281, 272 P.2d 195; State v. Woodall, 5 Wash.App. 901, 491 P.2d 680. See generally Annot., 77......
  • Turner v. Roman Catholic Diocese, No. 08-003.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 9 Octubre 2009
    ...is when the corporation is a party."); (collecting cases involving members of nonprofit utility cooperatives); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960) (members of cooperative association, which was the victim in this burglary prosecution, are disqualified from serving o......
  • State v. Asmussen, No. 23477.
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 2006
    ...411 N.W.2d 665, 666 (S.D. 1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121 (1960) (citing SD Const. art VI, § 2). In order for a defendant to exercise the right to self-representation and waive the rig......
  • Request a trial to view additional results

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