State v. Wright

Citations

• 15 S.D. 628
• 91 N.W. 311
• 1902 S.D. LEXIS 59

Syllabus

<p>1. Where it appeared from the uncontradicted testimony of the examining magistrate, the state’s attorney, the clerk of the circuit court, court, and the docket of the examining magistrate that a preliminary examination had been had and was waived by defendant after the examination of certain witnesses, and that the files of the circuit court had been removed for examination of counsel, and were traced to the possession of the defendant’s attorneys, the indictment will not be. quashed for lack of a preliminary examination under Laws 1895, Chap. 64, § '8, providing that no information shall be filed against any person for any offense until such person shall have had a preliminary examination, unless such person shall waive such right.</p> <p>2. Const, Art. 5, § 1, provides that the judicial powers shall be vested in a supreme court, circuit courts, county courts, and such other courts as may be created by law for cities and incorporated towns; and section 23 empowers the legislature to create such police magistrates for cities and towns as may be deemed from time to time necessary, and such police magistrates may also be constituted ex officio justices of the peace for their counties. Comp. Laws, § 7119, designates as examining magistrates police and other special justices appointed or elected in a city, village, or town. Held, that a police justice was authorized to act as a committing magistrate on a prosecution for embezzlement.</p> <p>3. Under Comp. Laws, § 7334, providing that, if a sufficient number of jurors cannot be obtained from the box, the court may, when necessary, order the sheriff to summon as many other jurors as it deems sufficient, a defendant is required to exercise his right of peremtory challenge against members of the regular panel before talesmn are called to complete the jury.</p> <p>4. Where the statute authorized a conviction of embezzlement for the taking of $20, on a prosecution for the embezzeling of $282, it was not prejudicial for the