*1 grand larceny. it affords accord with our rules as This is not in event, opportunity In to the state to answer the contention. State, opinion, in his cited Manson v. 249 Ind. 229 N.E.2d 'shoplifting, Indiana has no crime of and in his point, State v. Crowe which is noted above a different grand larceny the court sustained the conviction as given. shoplifting claim that a instruction should have been judgment is affirmed. Judges All the concur.
MILLER, Judge, sitting WOLLMAN, J., disqualified. Circuit FALLS, Respondent CITY OF BOHNER, SIOUX Appellant No. 10942. *2 Mundt, Atty., City Schiager, City Atty., Asst. E. Paul Roger Falls, plaintiff respondent. and Sioux Matthews, Sioux Willy, Jorgensen, of Pruitt & Steve appellant. and BIEGELMEIER,Judge. violating with
Defendant was City prohibits which of of Sioux Falls an ordinance intoxicating liquor, of a vehicle while under the influence of motor guilty. proceeding to which entered of he was tried court who found defendant sentence, guilty. appeals part suspend- from the He of ed. unlawfully first is that
Defendant's
claim
by jury. The
denied
trial
court has had
to
occasion
consider
opinions
city
status
ordinances and
are cited
and
recent
discussed
decision of
Thom
v.
sen, 1970,
651,
Application
84
the court trial for violation anof *3 scribing granting disorderly expressly jury conduct said the trial allowed in Hoben was based on M.S.A. 169.03. It wrote: § that, 169.03) requires
"We further held
the
since
act
(§
provisions
throughout
'applicable
that its
be
and uniform
political
the state and
municipali-
in all
subdivisions and
* * *
legislature
ties'
intended that
prosecution
cedures used in the
of such ordinances must
throughout
likewise be uniform
the state and that the
municipality required
is
utilize state criminal
prosecution
in
of such ordinance violations."
claiming
jury
Procedures
a
in
being subject
trials
court,
to statutes and rules of
without the ne
cessity of
classification in this
it
was not error to
jury
defendant a
trial. If
generis,
it be an
action sui
of Brook
ings Thomsen, supra,
required
trial;
jury
a
if a civil
action,
by
defendant did not
written
request
trial,
answer
jury
a
it,
15-6-38(b)(d).
and so waived
SDCL
If it be claimed to be a
(which
legislature
criminal action
by
23-1-1,supra,
SDCL
has
not),
declared it is
defendant did
comply
not
with SDCL 23-56-4.2
1. The
has so declared in SDCL 23-1-1: “A criminal
prosecuted
action is one
party,
person
the state
aas
public
a
offens»,
awith
punish-
for the
ment
thereof.” Prosecutions of all criminal actions on behalf
duty
of the state are the
attorney.
of the state’s
municipality
SDCL
power
7-16-9. A
has
to enact ordinances.
9-19,
duty
SDCL
attorney
is the
prosecute
aof
thereof,
SDCL
9-14-22.
jury
denial
a
For
demand for
trial for
timely
filed,
reason it was not
see Austin
County
Denver, 1969,
170 Colo.
fendant
time
heard
"All criminal
and determined
before
[*]
* * actions
entering
does
not demand
plea
court,
court
without
not
in which
jury
guilty,
jury".
trial at
the de-
proceedings;
minutes
record includes
settled
The
4, 1970,
appeared
court
on December
that
these show
judge pro
presiding
tern
attorney
before
person
with his
charge;
was "set
guilty"
the trial
to the
"pleaded
January
not overlooked
term. We have
trial" in the
beginning
attorney
at
defendant's
made
the statement
29, 1971,
guilty
plea
of not
January
that when the
the trial
"like
trial and he would
motion for a
made a
entered he had
cannot overcome
that motion." This statement
to renew
guilty
plea
with
shows the earlier
record which
the settled
guilty
only plea
in the record
of not
motion.
It is the
out
such
assignment
proceeded
on it.
trial was had and
and the
defendant's
refers to the
where the
this as it
error confirms
29, 1971,
January
when the
trial was made on
motion for a
imparts an
1970. The record
entered December
had been
pro
verity
of the trial court's
and is the sole evidence
absolute
ceedings.
Thompson,
N.W. 108.
Boettcher v.
expressions
Voluntary
of a trial
as to his re
remarks and
arriving
guided him
at
and matters that
actions to the evidence
*4
Cady
Cady,
properly part
record.
a decision are not
voluntary
as to
It is next claimed grounds complaint on the that defendant had theretofore been driving previous proceeding. acquitted At in a careless occurred, the claimed of the settled where error counsel driving charge a court trial on a stated defendant had careless argued acquitted; it was a lesser offense included in charge. No record of the court with the D.W.I. reference to this — introduced; recollections too clear- —were stated as foundation were for the motion. copy of copy ordinance nor a the careless Neither a record; nevertheless, per- in the the D.W.I. or, carelessly still not be intoxicated while son could drive intoxicating might liquor, influence able drive under the road, speed obey limit other rules of the a car under the all yet if intoxicated the D.W.I. ordinance. violate including made, insufficiency
Other claims the contention of evidence, have been examined and disclose no error. Affirmed.
DOYLE, J., concurs. J.,
WOLLMAN, specially. concurs HANSON, J., WINANS, J., P. dissent. See Parham v. Municipal Court and for of Sioux 86 S.D.
WOLLMAN, Judge (concurring specially).
I would affirm the conviction on the basis of our
decision
Thomsen,
PARHAM, Appellant COURT, v. MUNICIPAL FALLS, al., CITY OF SIOUX Respondents et No.