181 N.W. 955 | S.D. | 1921
Lead Opinion
Defendant was convicted of grand larceny. He appeals from- the judgment and also from an order denying him,a new trial.
Section 4725, R. C. 1919, provides that—
The “information is sufficient if it can be understood therefrom.; * * * (5¡): That the offense was committed prior to the time of filing the * * * information.”
This information being drawn in the past tense and the date alleged for the commission of the offense being an impossible date, it is urged that it does appear therefrom that the offense was committed prior to the time of filing same, and is therefore not open to attack because of what is apparently a clerical error. The courts, even in those states having statutes similar to section 4725, supra, are not in harmony upon, this question. We do not find it necessary to express any opinion thereon because of the fact that appellant has not complied with our statutes in questioning the sufficiency of this information. If this information does not substantially comply with the above requirement of section 4725, such defect appears upon its fact and was waived by failure to demur because thereof. Section 4779, R. C. 1919. If such information does not describe a public offense, such defect appears upon its face and was waived by failure to demur or (upon the trial under the plea of “not guilty”) .to raise the question of such defect, or to raise same by motion in arrest of judgment. Section 4779, supra.
The judgment and order appealed from are affirmed.
Dissenting Opinion
(dissenting.) I am unable to concur in the majority opinion. I am of the view that the judgment should be reversed on the ground that the information was not sufficient to sustain a conviction. The information was filed in May, 1920, alleging that the crime was committed' in October, 1920, being an impossible date,' subsequent to the filing of the information. This is not a case of uncertainty as to the time when the offense is alleged to 'have been committed, but the information “specifically” and “expressly” states that the offense Was committed in October, 1920. I am of the view that under the statute of this state the allegation of the information stating the time of the offense to have been committed in October, 1920, cannot be treated as a clerical error, or other informality or defect in form. 14 R. C. L. 179, and Morgan v. State, 51 Fla. 76, 40 South 828, 7 Ann.
"The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material ingredient of the offense.”
It is perfectly clear that our statute requires the allegation of time as to the commission of an offense to be alleged as of a time before the filing of the information. In other words, time is a material and necessary allegation of an indictment or information. Our statute by express legislation enacts as the statute law of this state the familiar common-law rule stated in State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584, and which reads as follows:
“It is a familiar rule that the indictment should state that the defendant committed the offense on a-specific day and year, but it is unnecessary to prove, in any case, the precise day or year, except where the. time enters into1 the nature of the offense.”
In jurisdictions where this rule as to the allegation of time in an information or indictment prevails, it is most uniformly held that an indictment which lays the offense to have been committed on an impossible day, or on a future day, that the objection is fatal and to the same effect as if no time or no offense at all had been stated. State v. Sexton, supra; Murphy v. State, 106 Ind. 96, 5 N. E. 767, 55 Am. Rep. 722; Id., 107 Ind. 598, 8 N. E. 158; Id., 107 Ind. 600, 8 N. E. 176; State v. O’Donnell, 81 Me. 271, 17 Atl. 66; State v. Smith, 88 Iowa, 178, 55 N. W. 198; 1 Bish. Crim. Law, § 403, subd. 2; 22 Cyc. 318; 14 R. C. L. 179. The case of people v. Mood, 69 Cal. 184, 10 Pac. 392, in principle is precisely the sarnie as the case before us. In that case, among other things, the court said:
“The information was filed June 18, 1885, and accused the defendants of the oomimission of a crime on the 20th of July, 1885, a day subsequent to the Ming. The defendants were arraigned and pleaded not guilty. After a jury was impaneled the district attorney moved for leave to amend the information by charging the offense to have been committed July 20, 1884, a day before the filing- of the information. Leave to amend was granted, and after the amendment the trial proceeded, without an*36 arraignment and plea to the information as amended. Without passing on the power of the court to- permit an amendment to an information, it is sufficient to s'ay; the information as filed stated no offense for the comimission of which the defendants could (be -tried, in that the day of the alleged commission of the offense was a day after the accusation was -made, therefore no offense was charged. The information, when amended, charged an offense, and this information so amended could have 'been treated as an original information then for the first time presented. On this information the defendant should have been arraigned and called on to plead. This omission was error; no' issue was joined as to any possible crime.”
The statute of 'California as to the requirement of an allegation of the time in an information or indictment is substantially the same as the statute of this' state. The case of State v. Lich, 33 Vt. 67, is very instructive and pertinent on this proposition, wherein the court deplored the fact that there Was no statute in that state authorizing the court to depart from the well-settled common-law rule in regard to alleging tim'e in an indictment. I am aware of the fact that in many jurisdictions there are statutes which provide that it shall not constitute an objection to an indictment or information because of its stating the- offense to- have been committed on a subsequent or impossible -date. State v. Burnett, 81 Mo. 119. We have no such statute, but on the contrary have a statute Which expressly requires an information or indictment to state the time as of a time before the filing thereof. The most recent decisions fully sustain the rule of the older cases that an information alleging an impossible or subsequent date for the commission of the offense is fatal and amounts to the allegation of no date and of no offense at all, under the rule such as prevails in this state. Terrell v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851, and note; McKay v. State, 90 Neb. 63, 132 N. W. 741, 39 L. R. A. (N. S.) 714, Ann. Cas. 1913B, 1034, and note; Id., 91 Neb. 281, 135 N. W. 1024, 39 L. R. A. (N. S.) 714, Ann. Cas. 1913B, 1034, and note. If, as held by the California Supreme Court the Supreme Court of Iowa, in State v. Smith, 88 Iowa, 178, 5.5 Ni. -W. 198-, and many other cases, that the information stating a subsequent date alleges no offense for which the defend
In view of the fact that it is held, in all jurisdictions where the common-law rule as to the sufficiency of the allegation of time in an indictment exists, as it does in this case, such an information or indictment, as is here involved, states no offense upon which a defendant can be arraigned or required to plead, the effect of the majority opinion is that a defendant himself must do those things by way of making objections which would lead to and give legal vitality to such an information. It is impossible for me to believe that such a defendant can be so required to- indict, or inform against, himself. It is one of the fundamental and constitutional rights of every defendant that the state prosecution shall file an information or indictment against him' which states a public offense. It is true such a defendant may demur to such an information, or he may move in arrest of judgment after trial; but there is no law requiring him' to do so as to an information that states no offense. He may be required to take such a