STATE of South Dakota, Plaintiff and Appellee, v. Lawrence VENTLING, Defendant and Appellant.
No. 16609.
Supreme Court of South Dakota.
Decided Feb. 21, 1990.
452 N.W.2d 123
Considered on Briefs Nov. 30, 1989.
HEEGE, Circuit Judge, for WUEST, C.J., disqualified.
SABERS, Justice (concurring in part and dissenting in part).
I agree that:
- The city is a proper party in this action,
- There is a prescriptive easement for the drain tile,
- Miiller wrongfully destroyed the drain tile, and
- The county is entitled to repair or replace the drain tile to the northern slough,
but, I do not agree on the status of this record, that an injunction should issue to prevent the county from draining the northern slough into the southern slough. “[T]he right to an injunction must be established with reasonable certainty.” Gross v. Connecticut Mut. Life Ins. Co., 361 N.W.2d 259, 265 (S.D.1985). If the county‘s actions were necessary to remedy or undo the harm caused by Miiller‘s wrongfully breaking the drain tile, no injunction should issue. The record in this respect is simply undeveloped and inadequate, making the right to an injunction not reasonably certain. A permanent injunction should issue only when а party has shown that he would “be injured or deprived of some lawful right without the aid of such injunction[.]” Id. (quoting State ex rel. Gray v. Olsen, 30 S.D. 57, 71, 137 N.W. 561, 562 (1912)).
Here, the permanent injunction would not even come into existence until after the county repaired or replaced the drain tile to the northern slough. As a result, there is no urgent need for the injunction. In addition, Miiller has not clearly established that he hаs a lawful right to prevent the county from draining the northern slough into the southern slough.
Therefore, I would reverse and remand to the trial court for the purpose of determining whether the county‘s actions were justified to remedy the harm caused by Miiller‘s wrongful conduct.
Timothy J. Vander Heide, Custer, for defendant and appellant.
SABERS, Justice.
Lawrence Ventling (Ventling) appeals his conviction for the offense of compounding a felony under
FACTS
In February 1988, Ventling entered into an option to purchase three mining claims owned by Anna Marie Ferguson (Ferguson) and her son. Ventling paid the owners $500 for the option which he could еxercise by an additional payment of $5,500. As part of the option, the owners agreed that Ventling could remove “samples” of rose quartz from the mines for testing.
During the spring of 1988, Ventling removed a large quantity of rose quartz from the mines. Estimates during trial on the amount of quartz removed ranged from 20 to 41 tons. Further, estimates on the value of the quartz removed deрended on quality and ranged from $.25 to $1.00 per pound. Based upon these figures, the total value of the quartz removed ranged from $10,000 to $82,000.
During the period of Ventling‘s option, it came to Ferguson‘s attention that Ventling was mining the mines. A dispute ensued between Ferguson and Ventling over the matter. On August 2, 1988, Ferguson caused a document to be served on Ventling attempting to tеrminate his option and notifying him that there should be no further trespass on mine property. Ferguson also reported the removal of the quartz to the county sheriff‘s office which proceeded to investigate the matter.
On October 17, 1988, Ventling phoned Ferguson‘s realtor, who had arranged for Ventling‘s option on the mining claims, and informed her that he was tirеd of the trouble going on over the removal of the quartz. Ventling told the realtor that he was prepared to offer the owners $6,0001 to forget the whole thing. The realtor relayed this information to Ferguson and Ferguson, in turn, reported the offer to the sheriff‘s office.
The next day, on October 18, 1988, Ferguson phoned Ventling while a sheriff‘s deputy prepared to tape record the conversation with Ferguson‘s consent. Ventling was not available, but a message was left and Ventling returned the call a short time later. This conversation was recorded. During the conversation, Ventling offered Ferguson $6,000 if she would withdraw her complaint with the sheriff‘s office. Ferguson replied that she needed time to think the offer over.
On October 20, 1988, state filed a complaint charging Ventling with the offense of compounding a felony (
WHETHER THE TRIAL COURT ERRED IN DENYING VENTLING‘S MOTIONS FOR ACQUITTAL BECAUSE THE GIVER OF CONSIDERATION CANNOT BE CONVICTED OF COMPOUNDING A FELONY UNDER
DECISION
Ventling was convicted of compounding a felony under
Any person who accepts, or offers or agrees to accept any pecuniary benefit as consideration for:
- (1) Refraining from seeking prosecution of an offender; or
- (2) Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime;
is guilty of compounding. Compounding a felony is a Class 6 felony. Compounding a misdemeanor is a Class 1 misdemeanor. (emphasis added).
Based upon the common law history of the offense of compounding a crime and the statutory language quoted above, Ventling contends that his actions did not fall within the elements of the offense because he would have been the giver and not the recipient of consideration for refraining from a сriminal prosecution. In response, state points to the word “offers” in the first sentence of
Our decision turns solely on thе interpretation of the emphasized language of
Interpretation of the statute is a question of law and this court accords no deference to the trial court‘s interpretation. Border States Paving v. Dept. of Revenue, 437 N.W.2d 872 (S.D.1989).
In construing a statute, our purpose is to discover the true intention of the law and that intention must be ascertained primarily from the language expressed in the statute. State v. Byrd, 398 N.W.2d 747 (S.D.1986). The intent of the law must be derived from the statute as a whole and by giving the statutory language its plain, ordinary and popular meaning. American Rim & Brake, Inc. v. Zoellner, 382 N.W.2d 421 (S.D.1986).
In giving
Moreover, the above interpretation of
It is an affirmative defense to prosecution under § 22-11-10 that the benefit received by the defendant did not exceed an amount which the defendant reasonably believеd to be due as a restitution or
indemnification for harm caused by the crime. (emphasis added).
This statute contemplates that a defendant under
In reaching this conclusion, we are unpersuaded by state‘s contentions concerning interpretation of
In summary, where the terms of a statute are plain and clear in their meaning, this court‘s function is to give them effect and not to amend thе statute in order to avoid or produce a particular result. State v. Ohlmann, 444 N.W.2d 377 (S.D.1989). Here,
We hold that the trial court erred in denying Ventling‘s motions for judgment of acquittal. Accordingly, we reverse Ventling‘s conviction and find it unnecessary to address his second and third issues on appeal.
Reversed.
WUEST, C.J., and MORGAN and MILLER, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
Common law history and the law merchant cannot conflict with the will of the sovereign.
We have, before us, a question of interpretation concerning penal legislation. There are some general statements of statutory construction which I wish to address.
Under the general title of CRIMES, it is noted that
The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect objects and promote justice. (Emphasis supplied mine).
What was the underlying purpose of this statute? What were the mischiefs intended to be remedied? Certainly, it was to make certain acts criminal which totally offend society. Clearly, as we can see from the title of the statute, it was to make criminal the compounding of a felony.
I would opt that we, in the Judicial Branch, occupy a role as literate Judges or Justices in interpreting a statute, not literal Judges or Justices.
We should read the entire statute together, construe it together, and apply the words in their ordinary signification so that they do not produce an absurdity. Every word and clause should be given effect. Sutherland, Statutory Construction § 380 (2d ed. 1904); see also, In re Terry‘s Estate, 218 N.Y. 218, 112 N.E. 931 (1916). In my opinion, an absurdity is reached under the majority writing by virtue of applying a literal standard, rather than the liberal standard as announced by our State Code. As a result of the majority‘s literal interpretation, we have an objectionable result as a consequence.
By applying a literal force оf rigidity in statutory construction, which might well trigger a more precise formula or criminal act, the majority has, in effect, cramped the intent of the legislature and the life of the penal law in this case. Put another way, this Court has placed a sharper rephrasing of the statute thereby limiting its practical effect. Such application of legal thought should not exist under
In my opinion, the function of this Court should be to enforce this statute, and any other statute, according to its terms. It is a fundamental rule of statutory construction that all provisions within a statute must be given effect, if possible. State v. Heisinger, 252 N.W.2d 899 (S.D.1977); Matter of Silver King Mines, 315 N.W.2d 689 (S.D.1982). It appears to me that the majority opinion is rejecting certain language in this statute upon the basis that the lаnguage is either (a) repugnant to the rest of the statute or (b) regarded as surplusage. In its mental dissection of this statute, it is my opinion that the majority opinion has placed false statutory interpretations by initially taking into account punctuation. By doing so, the majority opinion has failed to take into consideration our state law, namely
Punctuation shall not control or affect the construction of any provision when any construction based on such punctuation would not conform to the spirit and purpose of such provision.
In Lewis v. Annie Creek Mining Co. et al., 74 S.D. 26, 48 N.W.2d 815 (1951) one of the all time great Circuit Judges, Robert Bakewell, wrote on behalf of this Court and expressed that ” ‘punctuation’ as here used includes not only the usе but also the absence or lack of punctuation.” Lewis, 48 N.W.2d at 819. Rather than to consider punctuation, this Court should recognize that there are three means of committing a crime under this statute and all stand on an equal footing. My rationale is that the terms of the statute are disjunctive and thus there are crimes expressed in this statute which are independent of one another. In Lewis, Judge Bakewell wrote concerning the “last antecedent” rule. He expressed:
It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation. Hopkins v. Hopkins, 287 Mass. 542, 192 N.E. 145, 95 A.L.R. 1286. And thе presence of a comma separating a modifying clause in a statute from the clause imme-
diately preceding is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one. 50 Am.Jur. 259.
Here, the only antecedent for the three modifiers is “person.” It is the “person” who is guilty оf compounding, regardless of whether this “person” either accepts, offers, or agrees to accept any pecuniary benefit as consideration for refraining from seeking prosecution. There is nothing of the dominant purpose, of the statute we address, which dictates otherwise. From the top of the Capitol Dome, to the geese which trod upon the grass, I would herald a message that the dominant purpose of the statute under consideration is to punish those persons who obstruct justice. Were the last antecedent rule pointing in a different direction, the messenger would still say “Hearken, the dominant purpose of the statute must prevail.” We have, before us, a classic appellate error of forsaking the spirit and purpose of the state statute; through judicial interpretation, we have deserted the mischief which the statute sought to address.
Ventling, it is undisputеd, made an “offer” of a “pecuniary benefit” to Ferguson in exchange for her agreement to withdraw a criminal complaint filed against him. In essence, he tried to “buy off” the complaining witness. Unfortunately, this Court has not seized upon an interpretation of the statute as a whole; rather, it has isolated certain words to give a technical construction to the statute. This statute can be read to say: “Any person who offers any pecuniary consideration to refrain from seeking prosecution of an offender is guilty of compounding.” Ventling, it is undisputed, offered $6,000 to Ferguson “to forget the whole thing.” I will concede that Ventling did not “offer to accept” but he was a “person” who did “offer аny pecuniary benefit.” And he did “refrain from seeking prosecution of an offender“, the “offender” being himself. Therefore, he is guilty of compounding a felony, as determined by Circuit Judge Grosshans.
Here, the interpretation by the majority is more difficult to be understood than the statute itself. Therefore, having the conceptual itch of dissent come upon me, via, I hope, good rationale and statutory construction, I scratch my pen, voting to affirm this conviction.
In the Matter of HUGHES COUNTY ACTION NO. JUV 90-3.
In the Matter of HUGHES COUNTY ACTION NO. JUV 89-35.
In the Matter of HUGHES COUNTY ACTION NO. JUV 90-4.
No. 16997.
Supreme Court of South Dakota.
Argued Feb. 15, 1990.
Decided Feb. 28, 1990.