State v. Winckler
| Decision Date | 16 December 1977 |
| Docket Number | Nos. 11787,11791,11796,11802 and 11973,11790,11798,11801,s. 11787 |
| Citation | 260 N.W.2d 356 |
| Parties | STATE of South Dakota, Plaintiff and Appellant, v. Mark WINCKLER, Mike Weston, Jesse Costello, Mike Honomichl, Jim Weddell, Donald Cournoyer, and Godwin Weston, Defendants and Respondents. STATE of South Dakota, Plaintiff and Respondent, v. Mark WINCKLER, Mike Weston, Jesse Costello, Mike Honomichl, Donald Cournoyer, and Godwin Weston, Defendants and Appellants, and Jim Weddell, Defendant. STATE of South Dakota, Plaintiff and Respondent, v. Jim WEDDELL, Defendant and Appellant, and Mark Winckler, Mike Weston, Jesse Costello, Mike Honomichl, Donald Cournoyer, and Godwin Weston, Defendants. |
| Court | South Dakota Supreme Court |
John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and appellant State of South Dakota; William Janklow, Atty. Gen., Pierre, on brief.
Terry L. Pechota, Mission, for defendant and appellant Jesse Costello.
Carl Haberstick, Parkston, for defendant and appellant Mike Honomichl.
Richard D. Hagerty, Yankton, for defendant and appellant Godwin Weston.
John W. Keller, Chamberlain, for defendant and appellant Mark Winckler.
Frank J. Brady, Yankton, for defendant and appellant Jim Weddell.
James W. Abbott, Yankton, for defendant and appellant Mike Weston.
William J. Klimisch, Yankton, for defendant and appellant Donald Cournoyer.
*
Sometime during the night of May 1, and the early morning hours of May 2, 1975, the Coast-to-Coast store in Wagner, South Dakota was burglarized. Several weapons, including rifles and shotguns, were taken from the store, along with some ammunition. At approximately 3:00 a. m. on May 2, the seven defendants, who were armed, broke into the Yankton Sioux Tribe Pork Plant (hereinafter Pork Plant); they occupied the Pork Plant until 8:30 p. m. that same evening when the seven finally surrendered to authorities.
The authorities had surrounded the Pork Plant at approximately 7:00 a. m. on May 2. During the day several shots, coming from the Pork Plant, were fired at them. After the surrender, the weapons taken from the Coast-to-Coast store were found in the Pork Plant; no other persons were found on the premises.
Defendants were charged with burglary in violation of SDCL 22-32-9, grand larceny in violation of SDCL 22-37-1, and three counts of assault with a dangerous weapon, without intent to kill, in violation of SDCL 22-18-11. The assault charges were dismissed by the trial court prior to trial for want of jurisdiction. Defendants were tried conjointly on the burglary and larceny charges and a jury found them guilty of both charges. Defendants appeal from the judgment of conviction. The state appeals from the order dismissing the three counts of assault with a dangerous weapon. We deal with the state's appeal first.
A state's sovereignty over its own territory is plenary and yields only in matters that fall within the constitutional scope of exclusive federal jurisdiction. State v. Smith, 26 Or.App. 49, 552 P.2d 261 (1976). It is well established that crimes committed by Indian people within Indian Country are matters of exclusive federal jurisdiction and state courts therefore have no power over those crimes. Application of DeMarrias, 77 S.D. 294, 91 N.W.2d 480 (1958). 1 See also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); White v. Schneckloth, 56 Wash.2d 173, 351 P.2d 919 (1960). While this court has ruled that the Yankton Indian Reservation was disestablished, State v. Williamson, 87 S.D. 512, 211 N.W.2d 182 (1973), trust land is still Indian Country as defined by 18 U.S.C. § 1151. 2 DeCoteau v. District County Court, 87 S.D. 555, 211 N.W.2d 843 (1973), affirmed 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). It is undisputed that the seven defendants are Indian people; it is also admitted that the Pork Plant is on trust land. Because the alleged shooting originated from trust land, the trial court concluded that any alleged assault occurred in Indian Country and jurisdiction properly lay with the federal government.
However, the fact that an offense originated outside the state's jurisdiction does not necessarily deprive the state of jurisdiction. A state can exercise jurisdiction to punish any criminal offense committed in whole or in part within that state. 3 People v. Kirby, 42 Mich.App. 97, 201 N.W.2d 355 (1972). State jurisdiction properly lies when acts done outside its jurisdiction are intended to produce and do produce a detrimental effect within that jurisdiction. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). The law holds that a crime is committed where the criminal act takes effect. Simpson v. State, 92 Ga. 41, 17 S.E. 984 (1893). And this holds true even though the accused is never actually present within the state's jurisdiction. State v. Brundage, 53 S.D. 257, 220 N.W. 473 (1928). One who puts in force an agency for the commission of a crime is deemed to have accompanied the agency to the point where it takes effect. The state is then justified in punishing the cause of the harm as if he were in fact present at the effect should it ever succeed in getting him within its power. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967); People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 (1965); Simpson v. State, supra. Admittedly the doctrine of constructive presence is a legal fiction, but it is a fiction necessary to the practical administration of criminal justice.
Hyde v. United States, 225 U.S. 347, 362-63, 32 S.Ct. 793, 800, 56 L.Ed. 1114 (1912).
South Dakota deals with this problem by statute. SDCL 23-9-10 provides:
"When the commission of a public offense commenced without this state is consummated within its boundaries, the defendant is liable to punishment therefor in this state, and though he were out of the state at the time of the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself; and in such case the jurisdiction is in the county in which the offense is consummated."
The question facing us is whether the crime alleged assault with a dangerous weapon, without intent to kill is consummated within the jurisdiction of the state. 4 If the crime is consummated when the trigger is pulled, jurisdiction properly lies with the federal government under 18 U.S.C. § 1153 (). However, if the assault continues beyond the act of firing the weapon, the state may properly exercise jurisdiction.
Defendants were charged in the information as follows: "(Defendants) did commit the public offense of Assault With A Dangerous Weapon Without Intent To Kill (SDCL 22-18-11) in that they * * * committed an assault * * * by shooting * * * with a firearm with intent to injure * * *, but without intent to kill * * *." Simple assault is an essential criminal element in this allegation. 5 See State v. Grimes, S.D., 237 N.W.2d 900 (1976); People v. Odell, 1 Dak. 197, 46 N.W. 601 (1875). Assault is defined as "any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another." SDCL 22-18-1. Breaking down this definition, we see that an assault may be committed by one of two methods. It may either be an attempt to commit a battery or an offer to commit a battery.
As an offer to commit a battery the assault is completed when the object of the offer is put in fear of the immediate bodily injury under circumstances which would produce fear in the mind of an ordinary man. State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952); State v. Wiley, 52 S.D. 110, 216 N.W. 866 (1927). Fear of immediate bodily injury need not be shown in instances where the assault consists of an attempted battery. All that is required under the latter definition is some overt act toward commission of the battery. 1 Wharton's Criminal Law and Procedure, § 332, at 678 (1957). But see State v. Archer, 22 S.D. 137, 115 N.W. 1075 (1908). We need not decide which definition of assault should apply under these facts, however, because we find that the state would have jurisdiction in either instance.
Viewing the alleged assault as an attempted battery, we find that the crime would be consummated in state jurisdiction. That is the place where the object of the attempted battery is found. In this vein we find the reasoning of the court in Simpson v. State, 92 Ga. 41, 17 S.E. 984 (1893) to be persuasive. There the accused was convicted of shooting at another. At the time of the shooting, the accused was standing in South Carolina and the prosecutor was in a boat situated in waters under the jurisdiction of Georgia. The court held that Georgia had jurisdiction over the offense. 17 S.E. at 985. The court concluded that the crime became effectual where the intended victim was located, the place where the bullets hit. The crime is complete when the criminal agent, the bullets, cease to move. That the bullet failed to achieve the desired effect is of no consequence; it nevertheless had an effect in state jurisdiction.
Viewing the alleged assault as an offer to...
To continue reading
Request your trial
-
State v. Craft
...provided positive identification of him. The Supreme Court of South Dakota considered a similar factual situation in State v. Winckler, 260 N.W.2d 356 (S.D.1977), where the defendants were convicted of the theft of weapons which were found in their possession. They were apprehended during t......
-
Vasquez, In re
...169, 173-174, 195 A.2d 582 (1963); State ex rel. Juvenile Dep't v. W., 34 Or.App. 437, 442 n. 5, 578 P.2d 824 (1978); State v. Winckler, 260 N.W.2d 356, 360 (S.D.1977); State v. Gantt, 201 Wis.2d 206, 211-212, 548 N.W.2d 134 (1996). Cf. Bigelow v. Virginia, 421 U.S. 809, 822-824, 95 S.Ct. 2......
-
State v. Sanchez
...trial, and that severance motion was timely), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 (1974); State v. Winckler, 260 N.W.2d 356, 364-65 (S.D.1977) (describing three-factor test: whether defendant desires to use codefendant's testimony; whether testimony would be exculpator......
-
State v. Kills on Top
...standing inside reservation, fired rifle across boundary of reservation at a deputy sheriff standing on Minnesota land); State v. Winckler (S.D.1977), 260 N.W.2d 356 (state had jurisdiction to prosecute seven Indian defendants who fired shots from reservation onto state land). See also 41 A......