State v. TexleyState v. Texley
- Reporters:
- ,
- Before:
- Fosheim
Lead Opinion
Thе State, by an information filed May 23, 1977, charged defendant with embezzlement by an employee, in violation of
The appellate jurisdiction of this court is entirely statutory. If the legislature has not provided us with jurisdiction of a criminal appeal, we are without power to hear the case. State v. Nuwi Nini, S.D., 262 N.W.2d 758 (1978); State v. Devine, S.D., 257 N.W.2d 606 (1977).
Tha right of the State to appeal a criminal ease is governed by
*874The State contends that the information in this cаse was set aside because it was not “found, endorsed, and presented or filed, as prescribed in this title [SDCL tit. 23].”
We are unable to accept this contention. In State v. Johnson, 52 S.D. 273, 217 N.W. 205 (1927), we considered the applicability of
The appeal is dismissed.
WOLLMAN, C. J., and DUNN and MORGAN, JJ., concur. HENDERSON, J., concurring specially.Notes
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Embezzlement by employee. — Age limit. — If any employee over eightеen years of age fraudulently appropriates to his own use or secretes with a fraudulent intent to appropriate to his own use any property of any other person which has come into his control or care by virtue of his employment, he is guilty of embezzlement.
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Forgery or embezzlement, other than public money. — Limitation based on discоvery.— When the defendant is charged with forgery or embezzlement, other than of public moneys, an action described in § 23-8-3 may be commenced at any time within three years after thе discovery of the crime. The failure of discovery, if more than three years has elapsed at the time of prosecution, shall in all cases be pleaded and proven in the same manner as other elements of the offense.
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Right of state to appeal. — An appeal to the Supreme Court may be taken by the state from any of the following:
(1) From a judgment for the defendant on a demurrer to the indictment or information;
(2) From an order setting aside the indictment or information or arresting the judgment;
(3) From an order granting a new trial;
(4)From a judgment for the defеndant when the court sustains objection to the introduction of any evidence when the basis of such objection is such as might be ground for demurrer under § 23-36-8.
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Setting aside indictment or information — Motion required — Grounds.—The indictment or information must be set aside by the court in which the defendant is arraigned, and upon his motion, in any of the following cases:
(1) When it is not found, endorsed, and prеsented or filed, as prescribed in this title;
(2) When the names of witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
(3) When a person is permitted to be present during the session of the grand jury, while the charge embraced in the indictment is under consideration, except as provided in §§ 23-30-7 and 23-30-8;
(4) When the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good grounds for challenge, either to the panel or to any individual grand juror;
(5) When the defendant hаs not had a preliminary examination before the information is filed, as provided by §§ 23-20-2 and 23-20-3.
. We note that the court in State v. Johnson, supra, considered and determined an appeal by the state from a trial court order dismissing the charges because the statute of limitations had run. It does not appear that the jurisdictional issue, which we find dispositive here, was considered.
Concurrence Opinion
(concurring specially).
CONCURRENCE
I agree with the decision of the Court, but I wish to identify some factual and legal points for further judicial consideration.
FACTS
A company known as the- Hinderaker Company, Inc., was located in Astoria, South Dаkota, and was a corporation operating a grain elevator. At the very latest, in August of 1972, this corporation determined a shortage of flax in excess of 20,000 bushels. Defеndant Texley was not only the manager, but the only full-time employee during this time. In April of 1973, the Hinderaker Company, Inc., filed a civil action against the defendant alleging “fraud, misapprоpriation, and concealment.” Testimony elicited by the trial judge himself established that the principal officer of this company could only account for this shortage of grain by a major theft or some scheme to convert or embezzle it. Additionally, in 1972 the defendant was relieved of his employment and subsequently the Commodity Credit Corporation requested delivery of all stored flax in the elevator. Delivery was made and a shortage of some $58,000 was discovered in flax deliveries. It appeared to the trial court that thе Hinde-raker Company, Inc., had a definite shortage of approximately $58,000 in its flax account and during the period of time when the defendant Texley was the only employeе.
The civil action, as of the filing of the briefs herein, still pends.
The crime alleged in the information, namely embezzlement, covered a period from January, 1969, to May, 1972.
The trial cоurt believed that it was absolutely clear from the record that the Hinde-raker Company, Inc., in April of 1973, was aware of the grain shortage and suspected defendant of cоnverting this grain.
The facts, cited above, appear to be un-controverted.
The circuit court ruled that these facts, as a matter of law, constituted discovery for *875purposes of
Nonetheless, for reasons assigned below, this Court cannot affirm the trial judge or reverse his decision with respect to this aspect of the case.
The defendant in his brief urges that this Court cannot entertain this appeal as there is no statutory authority for the state to appeal.
ISSUES
1. Is this Court without jurisdiction to hеar this appeal? 2. Did the trial court properly decide as a matter of law that the statute of limitations had run?
DECISION
Our jurisdiction to entertain appeals is limited by statute. State v. Devine, 257 N.W.2d 606.
It is for the legislature to expand the right to appeal. State v. Stunkard, 28 S.D. 311, 133 N.W. 253.
The right to а criminal appeal is purely statutory and does not exist in the absence of a statute. State v. Wagner, 86 S.D. 382, 196 N.W.2d 360.
Article V, Section 5, of the South Dakota Constitution gives the legislature the power tо define the appellate jurisdiction of the Supreme Court. The Constitution provides: “The Supreme Court shall have appellate jurisdiction as may be provided by the legislature . . . The legislature has defined the State of South Dakota’s right of criminal appeal.
In State v. Nuwi Nini, 262 N.W.2d 758, this Court reiterated its fundamental appellate jurisdictional principle that if there is no statutory authorization, there is no right to appeal.
This Court is dependent upon the legislature to expand its jurisdiction, if in the legislature’s determination, broader criminal aрpeal jurisdiction is desirable.
Since the Nuwi Nini decision in 1978, the legislature has taken no action to broaden the Supreme Court’s jurisdiction. Therefore, this Court should now uphold the rules set down by that сase.
The State of South Dakota simply has no right to appeal under the factual showing and the record in this case. In this state, the right of the state to appeal is sevеrely restricted. The legislature has made it so. The state in the instant case has not structured its appeal within the framework of our state statutes and legislative intent.
This Court having no jurisdiction, we cannot address ourselves to the question which the state advocates: that the trial judge should not have ruled, as a matter of law, that discovery of the crimes took place prior to May 23,1974, thusly dismissing the information on the premise that the statute of limitations had run.
I would therefore dismiss the state’s appeal.