State v. Thompson

• Decision Date: 26 June 1893
• Parties: STATE v. THOMPSON.
• Court: South Dakota Supreme Court

55 N.W. 725

4 S.D. 95

STATE v. THOMPSON.

Supreme Court of South Dakota

June 26, 1893

Syllabus by the Court.

1. By the provisions of section 38, art. 5, of the state constitution it is necessary that all prosecutions "shall be carried on in the name and by the authority of the state of South Dakota," but it is not essential that an indictment shall contain a recital in terms that the prosecution is by the authority of the state. It is sufficient if the record shows that the prosecution is so conducted.

2. An indictment entitled in the name of the "State of South Dakota" as plaintiff against the person charged with a crime as defendant, reciting that it is found and presented to the court by a grand jury of the state in and for the proper county, duly and legally impaneled, charged, and sworn, and which concludes that the crime charged was committed against the peace and dignity of the state of South Dakota, and is signed by the state's attorney of the proper county, sufficiently shows that the prosecution is carried on in the name and by the authority of the state.

Error to circuit court, Kingsbury county; J. O. Andrews, Judge.

Nathaniel R. Thompson, having been convicted of murder, brings error. Affirmed.

Milville & Chamberlain, for plaintiff in error. Coe I. Crawford, Atty Gen., and Charles S. Whiting, for the State.

CORSON J.

At the December term, 1892, of the circuit court of Kingsbury county the plaintiff in error was indicted for the crime of murder tried, and convicted. The jury, by their verdict, having designated that the punishment should be death, he was thereupon sentenced to be executed as provided by law at the proper time. A demurrer was interposed to the indictment, one of the grounds of which was that the indictment did not state the facts necessary to show that the prosecution was "carried on in the name and by the authority of the state of South Dakota." The demurrer was overruled, and subsequently, before sentence, a motion for a new trial and in arrest of judgment was made upon the same ground, among others, and was by the court overruled. No bill of exceptions was settled by the court below, and hence the only questions that can be considered by this court are those presented by the judgment record.

The learned counsel for the plaintiff in error contend that the demurrer to the indictment and the motion in arrest of judgment should have been sustained, and that the indictment is fatally defective in not stating that the said prosecution was carried on in the name and by the authority of the state of South Dakota, as provided by the constitution of this state, which reads as follows: Article 5, § 38: "All process shall run in the name of the 'State of South Dakota.' All prosecutions shall be carried on in the name of and by authority of the 'State of South Dakota."' The indictment commences and concludes as follows: "The State of South Dakota, County of Kings-bury--ss.: In circuit court, third judicial circuit. The State of South Dakota vs. Nathaniel R. Thompson. Indictment. The grand jurors of the state of South Dakota in and for the county of Kingsbury, duly and legally impaneled charged, and sworn, upon their oaths present that heretofore to wit, on the fourth day of July, in the year of our Lord one thousand eight hundred and ninety-two, at the village of Arlington, in the county of Kingsbury, in said state of South Dakota, one Nathaniel R. Thompson, late of said county of Kingsbury, and state aforesaid, did commit the crime of murder, committed as follows: ***. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Nathaniel R. Thompson, her, the said Electa J. Bliton, in the manner aforesaid, unlawfully, purposely, feloniously, and of deliberate and premeditated design and malice did kill and murder, 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." The indictment was indorsed, "A true bill," and signed by the foreman of the grand jury and by the state's attorney for Kingsbury county. It will be observed that the indictment is entitled "State of South Dakota vs. Nathaniel R. Thompson;" that it was found and presented to the court by a grand jury of said county, under the sanction and by the authority of the state's attorney. It would seem, therefore, to be a prosecution in the name and by the authority of the state, and that the indictment in form purports to be a prosecution in the name and by the authority of the state. It will be noticed that the constitution, while providing that the prosecution shall be carried on in the name and by authority of the state, does not provide that it shall be stated in the indictment that it is carried on by authority of the state. If, therefore, the prosecution is in the name of the state, and carried on under the sanction of the proper officer of the state, namely, the state's attorney, we are of the opinion the constitutional provision is complied with, and that it is not necessary that the indictment shall state that it is found and presented by the authority of the state.

The counsel for the plaintiff in error rely on the following authorities as supporting their contention: State v Hasledahl, (N. D.) 52 N.W. 315; Jefferson v. State, (Tex. App.) 7 S.W. Rep. 244; Saine v. State, 14 Tex. App. 144; Calvert v. State, 8 Tex. App. 538; Gould v. People, 89 Ill. 216; Parris v. People, 76 Ill. 274. The case of State v. Hasledahl, decided by the supreme court of North Dakota, was a prosecution by information, and the information was not entitled in the name of the state. The court in that...