*1 22- dаngerous weapon was under Parsons that even if the riot baton is used 10-5, able to find from but rather must be exclusively as a weapon, defensive it is pri- the instrument was the evidence likely nonetheless to inflict injury. When designed weapon. Page as a As marily it designed what is to be used it notes, using any in a riot kind engaged only injury will inflict capable but is may prosecutеd for some instrument inflicting great bodily injury.1 I think a offense, g., danger- e. assault with a finding crucial is whether or not it is a kill, weapon, ous or assault intent weapon and primarily designed for use as offense, it is for the etc. As to such other made, finding such. Once that is it seems the manner in which jury to decide whether implicit that a further finding, which cer- actually the instrument case, tainly is factual in this weap- question the incident in made the instru- on great bodily injury, inflict is un- dangerous weapon. ment a questionably sufficient to meet the require- Page, supra, Page, at 91 N.W. at ments of and the applicable riot stat- quotes ute, Webster’s definition of court SDCL 22-10-5. “weapon” as an “instrument of offensive or join I Judge Miller for combat; . . The court defensive affirmance. quotes defining “weapon” as also Bouvier an “instrument of offensive or defensive trial, expert defendant’s wit-
combat.”
ness Kevin Parsons testified on cross-exam-
ination: Well,
Q designed you it is said basical- — ly weapon, as a correct?
A Yes Dakota, STATE South Plaintiff Q Is there other use for this other Respondent, weapon? than a Any A other use for the baton? CUMMINGS, Elmer John Q For the baton. Appellant. A No. testimony strongly It is true Parsons’ No. 12044. designed
indicates that the instrument Supreme Court of South Dakota. that, weapon, accepting a defensive weapon nevertheless comes within the defi- Jan. 1978. approved Page quota- nition since the tions from Webster and Bouvier in Page weap-
indicate both offensive and defensive by the
ons are covered statute. proper
It was also to consider that initially
baton was carried a law enforcе- important officer as of his time when he
equipment going at a duty.
potentially strong hazardous This is designed weapon,
evidence it was as a arguendo weapon.
even a defensive It plain testimony
seems from the total may incapacitate testified on Parsons direct examination: “The an individual but which weapon designed expose bony permanent damage.” (Emphasis to be used to will not leave body, added) areas of the nerve centers or muscle groups, areas which will cоntrol an individual *2 Guhin, Gen.,
John P. Atty. Pierre, Asst. brief, Janklow, on the William J. Atty. Gen., Pierre, plaintiff respondent. Vrooman, Falls, David V. Sioux for de- appellant. fendant and WOLLMAN, Justice. appealed
Defendant has from his convic- charge tion on a of slot ma- chines. SDCL 22-25-13. We affirm. In the early morning hours February 26,1975, defendant’s eastbound rental truck stopped by trooper statе on Inter- state 90 near Mitchell and defendant was failing cited for to display headlights. De- fendant informed the officer that he had generator problems had refused to grant permission the officer to examine the generator. response In to the officer’s in- quiry concerning the nature of the load that truck, hauling defendant was defend- аnt hauling antique stated that he was fur- equipment, refused the officer’s re- and that the Internal niture. Revenue inspect the load and quest permission jurisdiction Service has no to enforce laws lading. that he had no bill of him informed relating gambling operations. supervisor. called his officer then addition, the witness received a letter arrival, investigаting latter’s Upon the 28, 1974, May from the assistant attor- of his Miranda informed defendant officer *3 ney general spoken he had earlier with. questioned regard- him further rights and This letter stated that it was the writer’s the truck. Defendant cargo in ing opinion that if the slot machines the witness hauling he the officer that again told possess intended operat- were not in fact gave as a reason for furniture and antique merely display ed but were on pub- for the to look in the truck wanting the officer lic there no would be violation of state law. hauling antique he was the fact The very carefully letter stated that machine, which picture a of he showed slot expressed views therein were those of the Thе officer then took the to the officer. writer any way and were not in to be Department, to the Mitchell Police truck considered the of the Attorney Gen- morning it later that where was searched eral. warrant. The truck pursuant search The witness also received a letter from contain, among things, found to other County Minnehaha Attorney State’s machines, slot two of which were several which possession stated that the and use of exhibits at defendant’s trial. introduced as slot machines is unlawful under state law trial, defendant called as a witness the possession and that the mere of such ma- developer of a tourist attraction owner and chines public is declared tо be a nuisance. individual, Falls. This who in near Sioux Accordingly, the letter suggested that civic activities was an addition to his other acquired machines to be way be altered in a state senator from Minnehaha incumbent that would make it impossible that they that as a of the County, testified ever be gambling. replica of an planned development of a at his tourist attraction he territorial town The witness showed these letters to de- antique install some sloU ma- planned to fendant and asked him to obtain some slot machines that he chines similar to the had machines that would be suitable for the in other tourist attractions around the seen purposes for which the witness wished to position public Because of his state. use them at the tourist attraction. vice-president and as the national of office certain, however, witness was not exactly organization, research charitable a medical when it was that he had this conversation that he not be- the witness was concerned with defendant and could not relate it to a ownership any come involved in the of approximated time that the date of the embarrassing lead to equipment offense. He acknowledged on cross-exami- Accordingly, sometime publicity. nation that he did not know whether de- spring spoke of 1974 he with an assist- fendant was in fact obtaining anything for attorney general Depаrt- in the State ant day him on the defendant was arrested. Revenue, of who advised him to con- testify. Defendant did not appropriate tact an official in the Internal Defendant’s first contention is that no response to his re- Revenue Service. crime was committed because South Dakota witness received a letter from quest, prоhibits only law the use of slot machines. District Director of the Internal Acting provides: SDCL 22-25-13 8, 1974, May advising Revenue Service “It be any person shall unlawful for none of the machines that him that because possession, have in his owning custody, or contemplated the witness would under permit his control or to play public, kept any to the there would offerеd place control, under liability. possession no federal tax The letter also his any prohibits only that federal law slot machine or device pointed out the action of transportation gambling of anything the interstate of value is staked and light be construed in the provi- therein or the other by placing operated 22-25, balls, coins, сhecks, Chapter including sions of 22- slugs, any thereon 25-14, articles, provides: tokens, or in or other chips, opera- a result of such manner as capable being “All slot machines won or lost anything of value is gambling places tion where are machine, when the such operation together with kept operated proper- all deрendent operation of such ty kept result kind or used in connection this provisions But the same, chance. operation hereby of the are coin-operated not extend to public section shall declared to be nuisances.” amuse- pin tables and arcade nonpayout presume leg We should not that the ments, plаy features. Whoever with free to make the possession islature intended of this provisions shall violate operable slot machine a nuisance at of misdemeanor.” guilty shall be section the same time intended that the *4 Chapman Aggeler, v. cites such a machine should not be unlawful. 204, 848, in which the 119 P.2d Cal.App.2d conclude, therefore, languagе We that that Appeal inter- District Court of California speaks in SDCL 22-25-13 that of a machine substantially similar to a statute preted “upon anything the action of which of value pos- the prohibiting only as 22-25-13 SDCL is operated by placing staked and operated machine which is of a slot session any therein or thereon coins ... operat- played and not one other manner as a result of such persuaded by the We are not played. ed or operation anything of value won or lost decision, however. logic of the California is language description and a rule of that the court followed We note language prohibition not limits the construction, saying, strict against the devices described therein to statutes, speak through legislators “When being those that are or have been given must be a strict their enactments 19, v. gambling. People, See Bobel 173 Ill. interpretation. applied The law must 1188, 1191.* 50 N.E. Annot. 162 A.L.R. by written. It cannot be extended as it is next contention Defendant’s is that interpretation.” 119 P.2d at judicial refusing give the trial court erred in to his statutory construction approach to Such proposed instruction that: 22-1-1, pro- is at odds with SDCL by person “An act a who is committed vides: aware of the existence of the criminal penal the law. that “The rule of common relating subject law the to of his conduct strictly construed has statutes are erroneously in good who concludes faith provi- title. All its application no to this particular that his conduct is for some are to be penal and all statutes sions subject operation reason not to the according import to the fair construed guilty criminal law is not of a crime. terms, with view to effect their their appears engaging Where it that before justice.” objects promote conduct, the the made a defendant bona manner fide, effort, Read in the mechanistic followed diligent adopting a course court, 22-25-13 is by the California SDCL resorting to sources and means at by interpretation urged susceptible appropriate least as afforded un- defendant, only at the cost of disre- but legal system, our der ascertain and adjuration law, 22-1-1 garding by the SDCL the where abide he acted in according the statute be construed good faith reliance the results of view import disprove any the fair of its terms and such efforts which criminal 22-25-13 should objects. intent he a criminal its SDCL has committed to effect isolation, rather should offensе.” not be read in * purposes. (Ch. apparently provides 22-25-14.1 law Laws of We note that our now 1977). antique slot ma- for the lawful being gambling that are not chines pause to examine the
We need not merits We conclude that these statements consti- contention, evidence did not of this tuted a sufficiently positive assertion to giving of the instruction. Thе support satisfy the requirements of SDCL 23-15-16. testimony regarding the three only letters Defendant’s other attacks on the validity from the several public received officials of the search are without merit. was that of owner of tourist attrac- We have considered defendant’s conten- best, testimony tion. his established tions that the trial court allowing erred in only that he had shown the letters to de- the state to endorse the name of a witness fendant sometime before the date of the jury after the had been try sworn to when, exactly he could not recall. offense— case and that the state did not establish a testify, Defendant did not and there was no proper evidence, chain оf and we conclude evidence submitted at trial to establish the are without merit. fact that he had relied those letters or in question machines had been Finally, defendant contends that the obtained him for the owner of the tour- trial court erred in imposing as a condition request. ist attraction at the latter’s of suspending jail execution of the 90-day court, therefore, refusing did not err in imposed upon defendant provi instruction, give requested for courts sion: required are not to instruct on matters that support find no in the evidence. State
Johnson, “(3) 81 S.D. that the Defendant waives right his O’Connor, *5 v. 86 State S.D. 194 N.W.2d to be free from search and seizure for a 246; Zemina, 291, period State v. 87 of year during S.D. 206 which time police N.W.2d 819. officer or other law enforcement officer may, prior with written or oral Defendant attacks the validity of consent of the Defendants Probation Of- vehicle, the search of his contending, among ficer, search the prem- Defendant and his things, illegal other that the search was anytime ises of the day night or gam- upon because the affidavit the magis bling machines.” trate directed that the search warrant provisions Under the 23-57-5, of night positive served at was not SDCL the trial court was property place empowered that the to impose to be conditions searched, suspension the required by 23-15-16, as of the SDCL exe- cution of defendant’s provides part in that: sеntence. That stat- provides part ute in that: magistrate “The must insert a direction the having jurisdiction in warrant that it be served in the “All courts to try of- daytime, unless fenses positive state, the affidavits be under the laws of this and property judges thereof, that the the person is on the or in power shall have place suspend the to be searched in which the case he execution of behavior, may good insert a subject direction that it be served at to such condi- day night; time of the . . tions or . restitutions as the court judge may impose, thereof upon conviction of Although the affidavit in many does not so any misdemeanor under the laws of this words state “positive” that the affiant was state . . .” property place the was in the to-be searched, that affidavit does recite that: Defendant acknowledged at the sentenc-
“The driver finally ing stated hearing that he was a [defendant] dealer in coin antique that he had one slot machine and operated machines and that he pur- had antiques. . . ex- also chased slot maсhines in the past. [He] Given hibited to the Deputy affiant and to the knowledge, this the trial court acted reason- Attorney ... a picture ably States of in imposing the condition in question antique slot machine which he claimed defendant. We do not intimate part cargo.” of his probation conditions of similar to the one in
61 routine, DUNN, as a of Justicе imposed (dissenting). matter Chief question be in imposed selected but rather I would dissent. I with agreement am in dis judicial of the exercise sound cases in interpretation the made of SDCL 22-25-13 achieving the of purpose cretion and by the Assistant Attorney General and the rehabilitation, accomplish the goal the of County Minnehaha Attorney. State’s рrotect will serve of which prohibition statute is a of as period probation, during the public machines, slot apply use of and it does not need for Although the as thereafter. well possession of an antique machine. in a case of such condition imposition fact, (which 22-25-14.1 went SDCL into not be so instant one as the such incident) effect аfter this it to declares involving, say, in cases nar as compelling legislature policy that all slot violations, cannot nevertheless we cotics to 1941 be prior machines manufactured status self-confessed say, given defendant’s of South Dakota’s herit- preserved machines, in slot as a dealer (declaring 22-25-14 slot ma- age. all SDCL imposing in its disсretion court abused nuisance), upon majority chines a v. Mar question. in Cf. State condition heavily interpretating leans 484; S.D., 23-57- shall, SDCL 22-25-13, we is still in effect. So 196, 1977). Laws of (Ch. 5.1 calling the slot ma- now have one statute Likewise, we conclude that prior “public to 1941 a chines manufactured question not violate condition does an- preserving and another these nuisance” proba A rights. defendant’s constitutional “part Dakota’s machines as tique South are less expectations privacy tioner’s heritage!” citizen, average than those imposed probation such as that condition that Justice Por- I am authorized state case run afoul of in the instant does not in this dissent. joins ter rights. Fourth Amendment dеfendant’s See, g., Montgomery, v. 115 Ariz. e. State Mason, People P.2d 5 Cal.Rptr. 488 P.2d
Cal.3d *6 Richards, Mich.App. 256
People v. State, Himmage Nev.
N.W.2d Schlosser, N.D.,
296, 496 P.2d
State v.
Means,
136.
See also State v.
S.D.,
ful the rehabilitative aspects the conditions of protective
probation. judgment conviction is affirmed. MORGAN, JJ., concur.
ZASTROW
DUNN, J., PORTER, J., C. dissent.