State v. Spencer

157 N.W. 662, 37 S.D. 219, 1916 S.D. LEXIS 42

• Court: South Dakota Supreme Court
• Decided: May 1, 1916
• Docket: File No. 3966
• Status: Published

Opinion

WHITING, J.

[1] Defendant interposed a demurrer tc a criminal information. The demurrer was sustained1. Tire trial court made and entered- an -order or judgment which-, after recit in-g introductory -matters, reads:

“It is by -the court ordered that said demurrer be, and the same -is hereby, sustained, and the defendant is held to- -answer any new information which may be filed herein, -and -the -bond heretoifo-re given isi continued in force-, and the defendant is released thereon.”

The state has attempted to -appeal from such, -order or judgment. The notice of appeal recites that the appeal is “from the order made and entered in this action on the ioth day of November, A. D. 1915, sustaining defendant’s demurrer.” Respondent contends that this court has acquired! nioi jurisdiction; 'because, a9 stands conceded, such- appeal was not taken within 60 days after the “order” appealed from was entered. 'Section 484, Code Crim. Proc., provides that appeals- from orders must be taken within 60 days after the order is made. Respondent apparently overlooks the fact that, if the instrument appealed from was an order, no -appeal lies therefrom. Under the express provisions of section 483, Code Crim-. Proc., there must be a judgment on a demurrer before -appeal can be taken.

[2] To avoid the contention that the appeal was not timely, but apparently overlooking that no- appeal co-ul-d ever be taken if the writing was but an order, the appellant now contends that what it called an “order” in its notice of appeal was, in fact, a judgment. Respondent makes mo) claim' that he was misled -by the use of the 'word “order” ini such notice, and it is clear that bath parties understood from what the attempted -appeal was taken>. Was such writing an order or a judgment? Section 275, Code Crim. Proc.,- provides:

“Sec. 275. Upon considering the demurrer, the court must give judgment either 'sustaining or overruling it, and an order to that effect must be entered- upon the minutes.”

We are of the opinion that this writing, made and entered by the court, was, so far as- it ordered -the sustaining o.f the, demurrer, -a judgment under section 275. We do not believe it necessary for the court to have1 'designated' such, -writing a judgment or to have used- therein- the word “adjudge.”

[3] Section 276, Code Crim. Proc., as amended -by chapter 242, paws 1913, provides:

“Sec. 276. If the demurrer be sustained, the judgment is final and -is a bar to another prosecution for the s-a-me offense, except that where the -court is of the opinion that the objection on which -the demurrer is sustained may 'be avoided in a new indictment or information, he shall direct the case to be resubmitted to' the same or another grand j ury, or a new information to be filed.”

Upton oral argument there -was much discussion, as to whether this writing- was -a “final” judgment, owing to> the fact that the words relating to a new information were permissive, and not directory. With that question we have no. concern at this time. The demurrer was sustained, and the record shows that the state excepted to the ruling. Having excepted to such ruling* the state hald a right of appeal, regardless of whether it might have had the right to present a new information. People v. Lee, 107 Cal. 477, 40 Pac. 754. The effect of' this judgment if it remains unreversed is immaterial at this time. The motion to dismiss the appeal is denied.

[4] Did the trial court err in sustaining the demurrer? The demurrer questioned the sufficiency of the facts pleaded to con* stitue a criminal offense. The information purports to charge respondent with tire embezzlement of a sumí of money. It fall* far short of being a model of pleading. It contains1 much in the nature of allegations, of evidentiary matters, and omits two express allegations that would have removed any doubt as to its sufficiency. It expressly alleges' that respondent embezzled and appropriated to- his own use certain alleged money, the property of another; but there is no direct allegation that the money was trust money, or that it was ever in the possession of respondent. The information contains very lengthy allegations setting forth the intrusting of a certain note to1 tire respondent 'for a certain purpose and alleging that the-money embezzled was tíre proceeds of such note. -It would certainly have made a better pleading to have -omitted all -allegations -as- to how -the- money- became trust money, and -to have -simply -alleged that such money was a trust, and it would1- have been better to have directly -alleged, rather than to leave to 'any inference, howsoever strong, that the money came into the -possession of respondent; but we think there is sufficient in- the information to. apprise the respondent that he is charged with having -appropriated1 certain moneys belonging' to another, which money -had come into his hands as trustee for such -other. Considerable was said both in briefs and in oral argument touching matters' of proof. With that we are not 'interested at the present. Confessing, as the demurrer does, all the facts that are expressly alleged or that must be inferred from facts alleged, it confesses facts •sufficient to constitute the crime of embezzlement.

The judgment appealed from ie ireversed.