State v. La Croix

Citations

• 8 S.D. 369
• 66 N.W. 944
• 1896 S.D. LEXIS 55

Syllabus

<p>1. Laws 1895, Chap. 64, ? 3, requires an offense charged in an information to be stated with the same precision as is required in an indictment. Comp. Laws, § 7249, provides that an indictment is sufficient if the act charged is clearly set forth in ordinary language, so that a person of common understanding could know what is intended, and with such cer; tainty as that the court can pronounce judgment according to the right of the case. Section 6741 provides that every person who breaks and enters in the nighttime any building, etc., in which any property is kept, with intent to steal or commit any felony, is guilty of burglary in the third degree. Held, that an information was sufficient which charged that defendant, in the nighttime, burglariously broke and entered with intent, etc., burglariously to steal, though it did not state the degree of the offense charged.</p> <p>2. On appeal it will be presumed in favor of an order of the trial court overruling an unsupported motion to set agide the information that such inj ' formation was not filed until a preliminary examination had either been held, or waived-by defendant, as required by Laws 1895, Chap. 64, § 8.</p> <p>After impaneling and swearing the jury in a criminal case, the court adjourned until the next morning, when one of such jurors did not appear, and the court discharged him. Another juror was selected by oi’der of the court, which gave defendant the right to exercise three additional peremptory challenges, none of which were used. After the jury was thus completed, the juror discharged came into court. Held, that a conviction would not be set aside in the absence of any claim by defendant that he was prejudiced.</p> <p>4. An objection that evidence is irrelevant and immaterial is insufficient.</p> <p>5. An information alleged that defendant broke and entered the store building of H. & S., situate in the town of G., with intent to steal the goods of said H. & S. The evidence showed that such firm wa