State v. Wright

• Decision Date: 02 July 1902
• Citation: 15 S.D. 628,91 N.W. 311
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. SAMUEL H. WRIGHT, Plaintiff in error.
• Court: South Dakota Supreme Court

15 S.D. 628

91 N.W. 311

STATE OF SOUTH DAKOTA, Defendant in error,

v.

SAMUEL H. WRIGHT, Plaintiff in error. South Dakota Supreme Court Error to circuit court, Minnehaha County, SD Hon. Loring E. Gaffy, Presiding Judge Affirmed Grigsby & Grigsby Attorneys for plaintiff in error. The Attorney General W. D. Scott, State’s Attorney Attorneys for defendant in error. Opinion filed July 2, 1902

FULLER, J.

Plaintiff in error was tried in the circuit court and found guilty of the crime of embezzlement, as charged in the information of the state’s attorney, and the case is now presented to us for final determination. If correct in our view of the points urged by counsel for the accused, it may be assumed that a duly settled bill of exceptions is properly before this court, and none of the questions of practice pertaining to the time and manner of its settlement require determination. The main contention appears to be that the information was filed and trial prosecuted to judgment without proper evidence to show that a preliminary examination had been held, or that the accused had waived his right thereto.

Section 8, Chap. 64, Laws 1895, provides that

“no information shall be filed against any person for any offense until such person shall have had a preliminary examination thereof as provided by law before a justice of the peace or other examining magistrate or officer, unless such person shall waive such right; provided, however, that informations may be filed without such examinations against fugitives from justice.”

Whenever it is deemed necessary by the state’s attorney, whose duty it is to conduct the preliminary examination, the statute above mentioned gives him discretion to have the testimony so taken written out, in questions and answers, and filed with the papers in the case; but he must, in case he concludes to file no information, make, subscribe, and file with the trial court a complete statement in writing, containing his reasons for such determination, together with the evidence m the case; and such court may, in the exercise of its discretion, order the proper information to be filed; and place the accused upon trial. If the evidence offered at the preliminary examination makes it appear to the magistrate that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, he must be held to answer; and the existence of these two conditions must be shown by his order indorsed on the information, which, with the warrant, if any, and a certified record of the proceedings as they appear on his docket, must be returned immediately to the circuit court. Comp. Laws, §§ 7175-7187.

At the trial the accused was permitted to withdraw his plea of not guilty and move as follows to quash the information:

“First, that this defendant has never had a preliminary examination for the crime or offense charged, and that the petitioner was not a fugitive from justice; second, that no order was ever made by any magistrate to the effect that a public offense had been committed, and that there was sufficient cause to believe this defendant guilty thereof; third, that this defendant has never been by any magistrate held to answer to the crime or offense as is charged in the purported information herein; fourth, that no magistrate has ever returned to this court any information against this defendant, or any warrant issued for his arrest, or any certified record of his proceedings as they appear upon his docket, showing that this defendant has ever been held to answer the charges contained in purported information herein; fifth, that the information or purported information under which the defendant was arraigned does not substantially conform to the requirements of the statutes and laws of this state.” By the uncontroverted testimony of the examining magistrate, the state’s attorney, and the clerk of the circuit court, it was affirmatively established that a preliminary examination was duly held in strict compliance with every requirement of the statute; and the files of the circuit court to which the proceedings were returned had been withdrawn for the purpose of examination by counsel, and were traced to the possession of the attorneys for plaintiff in error. That the accused expressly waived the preliminary examination after certain witnesses had testified on the part of the state before the examining magistrate, and that all necessary papers and files relative thereto were duly certified to the circuit court, is established by competent testimony. The docket of the examining magistrate, offered and received in evidence, contains a record of the proceedings, as follows:

“The State of South Dakota, Minnehaha county, ss.:

Justice Court.

Before O. A. Fowler

Police Justice of Sioux Falls, South Dakota

The State of South Dakota v. Samuel H. Wright.

Sworn complaint was made on the 30th day of June, A. D. 1900, by Jeanette K. Morrow, charging Samuel H. Wright with the crime of embezzlement. Warrant issued this 30th day of June, 1900. Defendant arrested and brought into court same day by Charles Nelson, deputy; and after reading the complaint to the defendant, and apprising- him of his rights under the statute of the State of South Dakota, defendant entered a plea of not guilty. Defendant moved for a continuance to get counsel and prepare his defense until Monday, July 2d, at three o'clock, which motion was granted, and bail fixed at $900 for defendant’s appearance at that time, which bail was furnished, and the case adjourned until said date above. July 2, 1900, four o'clock, case called; C. P. Bates appearing for the state. Defendant and complaining witness in court. Defendant tried his own case. Jeanette K. Morrow sworn. Fred Hollister, Joe Kirby, and C. P. Bates all sworn and testified on the part of the state. Defendant moved to continue said case until Thursday, July 5, 1900, until 4 o'clock, which motion was granted, and defendant remanded to the care and custody of the sheriff, with bail fixed at nine hundred dollars. July 5, 1900, case continued till Monday, at ten o’clock, July 9, 1900. On motion of defendant, July 9, 1900, case called; C. P. Bates appearing for the state, and S. H....