20 S.D. 122 | S.D. | 1905
This is an original application upon notice for a writ of mandamus commanding' the cicruit court within and for Beadle county and Hon. Loring E. Gaffy, the presiding judge thereof, to establish and authenticate, by such evidence as the case may afford, true copies of certain lost or stolen indictments, to order such copies filed in lieu of the originals, and to proceed upon such copies as if they were originals. From an agreed statement of facts it appears “that on the 14th day of September, 1905, the state of South Dakota ,by Thomas H. Null, acting state’s attorney, for Beadle county, suggested the loss of purported indictments Nos. 15, 16, 17, 18, and 19, alleged to have been returned by the grand jury of Beadle county against the defendant Charles A. Kelley at the March, 1905, term of said court, and moved upon the affidavits of Asher F. Pay and Thomas H. Null to substitute for said lost indictments copies attached to the affidavits of said Asher F. Pay, being Exhibits D, E, E, G, and PI, which are set out in the application for the writ of mandamus in this case, * * * in lieu of said original indictments. To which motion the defendant entered the following objection: ‘At this time the defendant objects to the motion made by the state’s attorney to substitúte the copies of indictments Exhibits D, E, F, G, and H, for the reason that there is no authority under our Constitution or statutory laws for the substitution of any copy of an original indictment, and that there is no authority under the common law for such a proceeding; and we object on the further ground, for the reason that the exhibits offered as copies are not .certified or proved to be copies of the original indictments returned by the grand jury against the defendant, and are only shown to be papers delivered by one of the attorneys for the defendant to the clerk of this court on the request that he desired them for the purpose of copying; that the exhibits are copies of papers which are’
The reasons assigned by the learned circuit court for its refusal to grant the state’s application are thus stated in its return or answer in this proceeding: “In this action it appears that the grand jury for the county of Beadle in the spring' of 1905 returned several indictments into court against the defendant, which indictments were filed, and whereupon the defendant filed an affidavit of prejudice against the presiding judge on the several indictments returned; that he was by said judge required to plead; that he demurred to the indictments, which demurrers were overruled by the court, and the defendant entered to each of the indictments a plea of not guilty; that the causes went for trial to the next regular term of the circuit court for that county; that prior to the next term, and after the filing, the indictments were lost or stolen from the records, and they cannot be found; and this is a motion on the part of the state to allow the filing of copies of the indictments and to restore the record. The defendant, appearing personally and bjr counsel, objects to the filing of copies for several reasons, among others that the grand jury which found the indictments was not legalty constituted ; second, that the papers offered to be filed by the state are not copies or proven to be copies; third, that there is no statute allowing the restoration of a lost indictment- in this state. These are the main objections, as the court understands, made by the defendant to the filing of these proposed copies. In regard to the first objection, that the grand jury was not legally constituted, the court finds absolutety no reason for this contention. In regard to the objection that there is no statute under which these proceedings could be had, while it is not necessar)'’ to decide the question in this case, the court is of the opinion that, after an indictment has become a record of the court and is abstracted or lost, the court has the in-
Every court must have inherent power to protect and preserve its own records; otherwise, it could not perform the functions for which it is created. The indictments in question became public records when filed with the clerk. Rev. Code Cr. Proc. § 217. The
The acting state’s attorney -stated in his affidavit “that affiant prepared the said indictments for the grand jury; that the same were prepared by dictation to a stenographer, and the same were entirely typewritten instruments, except the signatures, indorsements, and names of witnesses; that when the stenographer wrote the said indictments upon the typewriter he made carbon copies thereof, which carbon copies were preserved and retained by this affiant; that when the clerk of this court informed affiant of the loss of the original indictments and called upon affiant for copies thereof, affiant delivered to the clerk of this court the carbon copies so made from the original indictments and preserved by this affiant, and that the carbon copies annexed to the affidavit of the clerk of this court are the carbon copies delivered by this affiant to the said clerk of this court; that this affiant has not seen the original indictments since the adjournment of the March, 1905, term of this court; that the last that this affiant knew of said indictments they were in the hands, of the clerk of this court; that affiant does not now know where said indictments are, but believes them to be lost or abstracted from the office of the clerk; that affiant believes the carbon copies referred to to be true copies of the original indictments, save and except the signatures and indorsements and names of witnesses; that affiant has examined the copies of the indictments made by the clerk of this court from the copies supplied by Mr. Wilmarth, containing the signatures, indorsements, and names of witnesses, and affiant believes them to be true and full copies of the original indictments herein.”
The clerk stated in his affidavit that “this affiant made a true copy of each of said indictments, and certified the same as being true copies of said indictments, and delivered said copies so certified to the defendant; * * * that, when affiant found that said files and indictments were missing from his office and could not be found, af-fiant called upen T. H. Null, state’s attorney of Beadle county, for copies of said indictments; that the said T. H. Null then- delivered
The only evidence offered in opposition to that of the state was the following affidavits:
*129 ‘'A. W. Wilmarth, being duly sworn according to law, do depose and say: That I am one of the attorneys for the defendant, Charles A. Kelley, in the cases of the state of South Dakota against him, as appears from indictments 15, 16, 17, 18, and .19, returned at the March, 1905, term of this court. That after the said indictments were returned to court, and before the defendant demurred to any of them, I saw and examined all said indictments; that I only saw the said indictments this once; that some of said indictments had written interlineations in them. That some time during the month of August, 1905, Asher F. Pay, clerk of courts of Beadle county, came to my office and asked me for these indictments. I said to the clerk that 'I did not have them and had never had them. The clerk said they were not in the office, and he thought I might have them; that probably some other attorneys had them. I then went to my file case and took out the files, inclosing all papers pertaining to these indictments) and said to him that these copies which I then handed him were the only papers I had pertaining to said indictments. He asked me if I would let him take them and make copies; and I said, 'Yes/ and he took them. I do not know whether the papers that I let him have were copies of the original indictments or copies of any certified copies of said indictments, as I never compared them or saw them compared, and do not know whether or not they were ever compared.”
“I, C. A. Kelley, being duly sworn according to law, do. depose and sajr: That I am the defendant in the cases of the state of South Dakota v. C. A. Kélley, as appears in indictments numbers 15, 16, 17, 18, and 19, returned at the March, 1905, term of this court. That I have never had any of the said indictments in my possession, and I never saw them except in the hands of the clerk as he read them in open court, and do. not know anything about them since I saw them in his hands. That I was informed that said indictments were missing from the files of the clerk of courts, and to ascertain if such was the fact I went to the clerk’s office and inquired of him. personally if the indictments were missing, and was informed that they were. That the clerk then said that he had copies. I asked*130 him to show them to me. He brought out purported copies, two of each indictment, one set of which he said he received from Mr. Null, and the other set he said he received from Mr. Wilmarth. That the clerk at that time said that he had made onfy one certified copy of these indictments, and that he gave those copies to trie. I said to him, 'Yes, }rou gave me certified copies.' He then asked me if I would let him have my certified copies. To this question I made no reply. That subsequently the clerk of courts called at my office for these certified copies, and I said to him that I wished to consult my attorneys before doing anything in the matter. That I never at any time have refused nor consented to turn over to the clerk of courts the certified copies which he delivered to me. That I am unable to. find said copies and cannot produce them. That in the certified copies which were delivered to me there were written inter-lineations in the bodjr of the indictments at the time they were delivered to me by the clerk of court.”
Exhibit A, one of the carbon copies produced by the acting-state's attorney, was identically the same as Exhibit E produced by the clerk, except as to two wholly immaterial words and that the blanks left on the former for the names of the foreman, acting-state’s attorney, and witnesses sworn and examined before the grand jury were not filled in. The same is true of the carbon copy, Exhibit C, and the clerk’s copy, Exhibit F. The carbon copy B and the clerk’s copy H were identically the same, except that the blanks left on the former for the names of the foreman, acting state’s attorney, and witnesses were not filled in. It is difficult to imagine how any. fact could be more satisfactorily established than that Exhibits E, F, and H are true copies of three of the lost indictments. Carbon copies of the original typewritten indictments are produced which correspond with copies in the possession of the defendant’s attorney, except in the respect stated. As to the typewritten portions of the originals, the onfy portions which could not be easily supplied by oral testimony, the carbon copies are infinitely more reliable than certified copies, because it is a physical impossibility for them to differ from the originals. The defendant was furnished with certified copies. His áttorney is found with copies which cor
The lower court having failed to' perform its duty as indicated, this court, because of the peculiar circumstances disclosed in this proceeding, deems the case one in which it should exercise its constitutional power of control over all inferior courts, and issue its mandate commanding the circuit court to* perform such duty. Vine v. Jones, 13 S. D. 54, 82 N. W. 82; City of Huron v. Campbell, 3 S. D. 309, 53 N. W. 182. All the judges concur, except FUEEER, P. J., who thinks that the circuit court erred in denying the state’s application, but that -its action should not be reviewed in this proceeding.