*1 Dakota, Plaintiff of South STATE Respondent,
and WATKINS, Wesley
Charles Appellant.
and 12412.
No. Dakota.
Supreme Court of South Oct.
Argued
Decided Dec. Guhin, Gen., Pierre,
John P. Atty. Asst. plaintiff respondent; and William J. Janklow, Gen., Pierre, Atty. on brief. Falls, William D. Kenyon, Sioux for de- fendant appellant. and MORGAN, Justice. appeal
This is an from circuit court the Second Judicial Circuit of a conviction escape. Appellant contends that he was not allowed the of peremp- number tory jury challenges and that criminal statute was improperly utilized against him in sentencing. We affirm. Appellant imprisoned had been Penitentiary serving South Dakota ten-year third-degree burglary. sentence for morning appellant One was determined to missing penitentiary from the and was escaped. believed to have midnight Near day, apprehended that same he was Dakota, barn Rapids, near Dell South and was the penitentiary. returned to (State) The State of Dakota then South two-part charging ap- filed information pellant escaping with from the in violation of 24-12-1 SDCL and with be- ing a habitual under SDCL 22-7- K2).1 felony, any felony provides: would be a commits
1. SDCL 22-7-1 within state, who, having punishable upon this been A attempt or an such second offense as follows: state of a any subsequent felony If the laws of is such that or under commit a country, state, pun- government, first conviction the offender would be other which, any this ishable term less within if committed *2 840 persons charged escape on the with the crime of jury appellant
After the
trial as to
charge,
unique argument
he waived a
and advances a rather
in
escape
the infor-
portion
offender
of
of his
It
support
appears,
contentions.
trial
mation, and,
hearing, the
however, that he failed to raise the issue
to
a habitual offender
court found him be
the trial court
it
before
and is therefore not
prior felony
convic-
having at least
preserved
argument
for
before this court.4
years
him to five
tions and sentenced
judgment
The
the
and sentence of
trial
penitentiary.
state
court is affirmed.
is that
first contention
Appellant’s
refusing
erred in
to allow
the trial court
WOLLMAN,
J.,C.
and DUNN and POR-
in
twenty
jury challenges
peremptory
him
TER, JJ., concur.
since,
ten,2
guilty
if he were found
stead of
information, he
part of the
on the first
ZASTROW, J., dissents.
imprisonment
life
if
could be sentenced to
the
adjudged a habitual criminal under
ZASTROW, Justice (dissenting).
the information. We disa
part
second
of
respectfully
I
dissent.
gree.
provides
SDCL 23-43-28
that the defend-
regarding
Dakota statute
en
The South
twenty
ant is entitled to
peremptory chal-
habitual criminals
punishment
hanced
lenges
imprisonment
where the maximum
offense,
merely
new
but
does not create a
for an
imprisonment.
offense is life
The
discretion,
court,
trial
in its
authorizes the
opinion points out that the habitual crimi-
one
impose
penalty upon
severe
to
more
nal statutes do not create an offense but
who is
to have the status of habitu
found
are authorized
punishment
enhanced
for the
DeMarsche,
v.
68
al criminal.3
S.D.
State
underlying crime.
250,
(1941);
Ruffing,
v.
crimes) grounds is not here This situation challenges.
peremptory different; the sentence the fact no *3 prior inability to establish an
because fact not alter the does
felony convictions selection the of the at the time