149 N.W. 730 | S.D. | 1914
The defendants were convicted upon an information charging:
“That heretofore, to-wif, on or about the 24th day of September, 1913, at the county of Spink and state of South Dakota, Oscar Johnson and Charlotte Johnson of said county and state did commit the crime of willfully delaying and obstructing a public officer in the discharge of the duties of his office, committed as-follows, to-w'it: That at said time and place said Oscar Johnson and said Charlottee Johnson -did willfully and unlawfully obstruct one Earl Lower, a duly appointed, qualified, and acting deputy sheriff of the county of Spink and state of South Dakota, from taking possession of and removing certain grain upon which the sheriff o-f said Spink county had previously levied under and by virtue of a certain execution -issued out of the circuit court of Spink county, S. D., -by the clerk of said circuit court, which execution was dated the 8th day of August, 1913, and in an action in said circuit court wherein one N. H. Campbell was the plaintiff and one Bengt Johnson was defendant, and under which execution said 'sheriff, to-wit, on the nth day of August, 1913, had levied on some grain and taken the same into his possession, said Earl Lower then acting for and on behalf, of the said sheriff, which fact the said Oscar Johnson and Charlotte Johnson then knew, and the said Oscar Johnson and said Charlotte Johnson, then and there knowing that said grain had been levied upon by the sheriff of Spink county, and -that said Earl Lower was acting for and on- behalf of said sheriff, willfully and unlawfully seize, take possession -of, and carry away said grain notwithstanding such levy, by overcoming the resistance of said Earl Lower- as deputy sheriff as aforesaid, contrary to- the fo-rm of the statute,” etc.'
Before trial, defendants moved to quash the information on ten separate grounds: Hirst. That there was no preliminary hearing upon which to base the information. Second. That the magistrate failed to reduce the testimony of witnesses to writing
The assignments of error extend over 25 pages of the printed record, and an attempt to review them separately is wholly impracticable. For this reason we shall only consider the questions which we deem vital to a determination of appellants’ legal rights.
Appellants’ main contention is that the information charges a violation of section 187 of the Penal Code, while the evidence shows that the conviction must have been under section 142 of .the Penal Code. Section 142 is as follows:
“Every person who -willfully injures or destroys, takes or attempts to take, or assists any other person in taking or attempting to take from the custody of any officer or person, any personal property which such officer or person has in charge under any process of law, is guilty of a misdemeanor.”
Section 187, Penal Code:
“Every person who willfully delays or obstructs any public*608 officer in the discharge or attempt to discharge any duty of his office, is guilty of misdemeanor.”
Section 409, Code of Criminal Procedure, provides:
“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.”
The rule is stated in 22 Cyc. 334, as follows:
“It makes no difference under what particular section of a statute the indictment may have been drawn, nor are the infirmities of such section or of the indictment thereunder material, providing the indictment be good -under some other section of the statute which is valid. The fact -that the circumstances under which a particular offense is committed rendered it punishable under a statute applicable to another offense does not render it necessary to charge the crime as committed under such statute (citing State v. Vandenburg, 159 Mo. 230, 60 S. W. 79; People v. Campbell, 127 Cal. 278, 59 Pac. 593). * * * An indictment for an offense created by .a general statute need not state specifically, by particular reference thereto, the statute violated by the acts alleged to be a crime” (citing Knight v. State, 88 Ga. 590, 15 S. E. 457; Crabb v. State, 88 Ga. 584, 15 S. E. 455; State v. Allen, 32 Iowa, 248; Powers v. Commonwealth, 90 Ky. 167, 13 S. W. 450; Rawlings v. State, 2 Md. 201; Commonwealth v. Donovan, 170 Mass. 228, 49 N. E. 104; Commonwealth v. Hoye, 11 Gray [Mass.] 462; State v. Wallace, 94 N. C. 827; State v. Cobb, 18 N. C. US; State v. Flanagan, 25 R. I. 369, 55 Atl. 876; United States v. Goodwin [C. C.] 20 Fed. 237).
We are not called upon, in this case, to determine the conditions under which a person may or may not lawfully resist cm attempted levy of execution on personal property. That subject is discussed in State v. Richardson, 38 N. H. 208, 75 Am. Dec. 173; State v. Downer, 8 Vt. 424, 30 Am. Dec. 482.
The court further correctly instructed the jury, in substance, that when personal property is in charge or-possession of an officer or person, under any process of law, the question of title to the property is immaterial in a criminal prosecution for taking it from the custody of the officer. In such case, no person, not even the owner, is permitted to -take his property from the custody of an officer, except by legal process.
“I have this day received of G. W. Hurst, sheriff in and for Spink county, nine stacks of wheat levied upon by said sheriff in the case of M. H. Campbell against Bengt Johnson, which I hereby agree to keep in my possession and to notify said sheriff at the time of threshing.”
That about September 19th Ackles ■ wrote a letter to the sheriff notifying him that the grain would- be threshed on September 24th. That a deputy sheriff, having the execution and custodian’s receipt, went to the stacks where the grain was being threshed and divided with the tenant Ackles; asked the man
“It was evidently the intent of the Legislature to require all parties who might claim title to personal property levied on by the sheriff or other proper officer to assert such title by legal proceedings in the courts.”
We adhere -to this view. It follows, also, that force, threats, Or violence are not elements of the offense, and appellants could not predicate a defense upon their absence in the taking of the property from the custody of the officer.
“The court instructs the jury that you must receive the law as I state it to be, notwithstanding you may firmly believe I am wrong, and that the law is or should be otherwise.”
Counsel contend that this amounts to coercion, and did not leave the jury free to consider the case impartially, upon the merits. Doubtless jurors are sometimes prone to accept rules of law or justice asserted by counsel as most favorable to their clients. In such cases the trial court may feel constrained to correct any such tendency by itself assuming responsibility for the correctness of the rules of law given them by the court for their guidance. The instruction states the law correctly, and involves no
We have carefully examined the entire record and find no reversible error. The judgment and order of the trial court are therefore affirmed.