INDICTMENT-PROCESS.

1. By the provisions of Section 38, Article 5, it is not essential that an indictment shall contain a recital in terms that the prosecution is by the authority of the state. It is sufficient if the record shows that the prosecution is so conducted.

2. An indictment entitled in the name of the "State of South Dakota" as plaintiff against the person charged with a crime as defendant, reciting that it is found and presented to the court by a grand jury of the state, in and for the proper county, duly and legally impaneled, charged, and sworn, and which concludes, that the crime charged was committed against the peace and dignity of the State of South Dakota, and is signed by the state's attorney of the proper county, sufficiently shows that the prosecution is carried on in the name and by the authority of the state. State v. Thompson, 4 S. D., 95, 55 N. W., 725.

ARTICLE VI.

BILL OF RIGHTS.

§ 1. All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. BANKING-PROHIBITIONS.

The said act, (Chap. 27, laws 1891), in so far as it prohibits individuals or firms from carrying on the business of banking, specified in said subdivision 7 of section 4 of said act, is in conflict with the provisions of section 1 of Article 6 of the Constitution.

State v. Scougal, 3 S. D., 55, 51 N. W., 858; Se also In re Construction of Constitution, under Art. 5, Sec. 13. $ 2. No person shall be deprived of life, liberty or property without due process of law.

BANKING-PROHIBITIONS.

1. The said act, (Chap. 27 laws 1891) in so far as it prohibits individuals and firms from carrying on the business of banking, specified in said subdivision 7 of section 4 of said act, conflicts with section 2, Art. 6, of the Constitution.

State v. Scougal, 3 S. D., 55, 51 N. W. 858.

DUE PROCESS OF LAW-TAX RECEIPT COLLECTION.

Laws 1890, p. 318, c. 150, § 3, providing that possession of a tax receipt shall be conclusive evidence that all prior taxes on the property have been paid, and shall be a bar to their collection, is repugnant to Const. art. 6, § 2, as a county is a person and a tax property, within the meaning of the section.

Harris v. Stearns, County Treasurer, 17 S. D., 439, 97 N. W., 361:See also Harris v. Stearns, 108 N. W. 247 (Former opinion reversed.)

NURSERY STOCK-SALE OF.

The Laws of 1907, p. 414, c. 194, regulating the sale of nursery stock,' provides for the issuance of a certificate and permit by the state board of agriculture. The law declares that as a condition precedent thereto, the board shall require such references and evidences of integrity as may be necessary to establish the responsibility and good faith of the applicant, but provides for no appeal from the decision of the board. It is held that the word "responsibility" meant ability to answer in payment or to respond in damages for injuries caused by the sale of improper nursery stock, and that such provision, not being within the police power of the state to protect the people from fraud, imposition and deception, was a violation of Art. 6, sec. 2,

in that it confers upon the board the absolute power to determine who and who shall not sell nursery stock within the state.

§ 3. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby s.cured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state.

No person shall be compelled to attend or support any minister or place of worship against his consent nor shall any preference be given by law to any religious establishment, or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

APPROPRIATIONS FOR SECTARIAN SCHOOLS-PAYMENT OF STUDENTS' TUITION-VALIDITY OF CONTRACT.

Construing Art. 6, sec. 3, and Art. 8 sec. 16 it is held that these provisions of the Constitution were intended to be and are self-executing, and require no act of the legislature to become operative, but of themselves control al legislation upon the subject of appropriating money or other property for "the benefit of" or "to aid" any sectarian school, society, or institution, and control and limit the powers of all state, county, and municipal officers in auditing or paying any such appropriation.

Synod of Dakota v. State, 2 S. D., 366, 50 N. W., 632.

$ 4. The right of petition, and of the people peacebly to assemble to consult for the common good and make known their opinions, shall never be abridged.

§ 5. Every person may freely speak, write and publish on all subjects, be ing responsible for the abuse of that right. In all trials for libel, both civib and criminal, the truth, when published with good motives and for justifiable ends, shall be sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court.

SLANDER-PRIVILEGED COMMUNICATION-CHARGE TO JURY-ER

ROR.

Where, in an action for slander, the plea was that the statement was privileged, it was error for the court to assume to decide that the communication was not privileged; its duty being merely to direct the jury by stating to them what constitutes a privileged communication.

Ross v. Ward, 14 S. D.. 249, 85 N. W., 182.

LIBEL EVIDENCE-RECORDS, ABSENCE OF.

In an action for libel, that where the evidence, including the alleged libel, was absent from the record, an instruction submitting to the jury the question whether the publication charged plaintiff with being prosecuted criminally, for embezzlement would be presumed proper, if it would be proper under any provable state of facts under the pleadings.

Myers v. Longstaff, 14 S. D.. 98. 84 N. W., 234; See also Boucher v. Clark Publishing Co., 14 S. D., 72, 84 N. W. 237.

$ 6. The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any

court

JURY TRIAL STATUTES VIOLATING.

The charter of the city of Watertown (sections 25, 27), authorizing a police justice to try certain cases for violation of ordinance without a jury, and allowing an appeal in such cases only when imprisonment exceeding 10 days or a fine exceeding $20 is imposed, violates Const. Art. 6, § 6, and section 7.

Belatti v. Pierce, Police Justice, 8 S. D., 456, 66 N. W., 1088.

JURY TRIAL-PROBATE PROCEEDINGS.

Under Const. Art. 6, § 6, parties who petitioned for letters of administration had no constitutional right to a jury trial.

In re McCullan's Estate, 20 S. D., 498, 107 N. W., 681.

TRIAL NON-WAIVER.

Under the provision of Art. 6, § 6, Rev. Code Civ. Proc. § 275, providing that in an action for the recovery of specified real or personal property trial by jury may be waived only with the assent of the court to the written consent of the parties filed with the clerk, or an oral stipulation made in open court and recorded in the minutes of the trial, the right to a trial by jury is not waived by defendant in an action at law for the recovery of personal property by moving for a directed verdict at the conclusion of plaintiff's evidence, where, after the denial of the motion, he introduces evidence sufficient to carry his case to the jury.

Albien v. Smith, 19 S. D., 421, 103 N. W., 655.

§ 7. In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. CONTEMPT-WITNESSES STATUTORY PROVISIONS.

1. Neither the constitutional provision that "the right of trial by jury shall remain inviolate," nor that the accused shall be entitled "to meet the witnesses against him face to face," has application to summary proceedings to punish for contempt.

2. That portion of section 13, c. 101, Laws 1890, which provides that "the affidavits upon which the attachment of contempt issues shall make a prima facie case for the state," is not unconstitutional, as being an encroachment of the legislative upon the judicial power.

3. Whether the law is unconstitutional, in that under it a defendant may be compelled to be a witness against himself, is not decided, for it is not claimed that defendant's rights were so violated, and it is a well-established rule of law that no one can take advantage of the unconstitutionality of any provision of a law who has no interest in, and is not affected by, such provision.

State v. Mitchell, 3 S. D., 223, 52 N. W., 1052.

INDICTMENT-SUFFICIENCY OF INTOXICANTS.

Under Section 7, Art. 6, the offense charged in an indictment must be set forth with sufficient certainty to enable the accused to prepare his defense in advance of the trial, to enable the trial court to know that the accused is being tried upon the identical charge passed upon by the grand jury, and to enable the accused to plead his conviction or acquittal in bar of a second indictment.

2. An indictment which charges the offense as follows: "That F. B., late of said county, yeoman, on the 1st day of March, in the year of our Lord one thousand eight hundred and ninety-three, at the county of Beadle and State of South Dakota, with a force of arms then and there did wilfully, wrongfully, and unlawfully sell intoxicating liquors, to be drank as a beverage, contrary to the statute in such case made and provided, and against the peace and dignity of the State of South Dakota,"-is insufficient, in that it does not set out the nature and cause of the accusation with that degree of certainty required by Section 7, Art. 6, of the state Constitution. State v. Burchard, 4 S. D., 448, 57 N. W., 491.

TRIAL-DELAY-DISCHARGE.

Const. Art. 6, § 7, entitles an accused to a speedy trial. Rev. Code Cr. Proc. 630, declares that, if a defendant prosecuted for a public offense,

whose trial has not been postponed on his application, is not brought to trial at the next term of court in which the indictment or information is triable, the court must order the prosecution dismissed, unless no cause is shown to the contrary; and section 395 provides that, where the jury disagree, the cause may be again tried at the same or another term, as the court may direct. Held, that where accused was on bail, and after one disagreement applied for a change of judge, but took no steps to prevent the adjournment of his case for several terms, nor to procure an earlier retrial,' he was not entitled to a discharge for delay.

State v. Lamphere, 20 S. D., 98, 104 N. W., 1038. WITNESSES-NOTICE OF.

Sec. 7, does not require that notice be given to accused previous to the trial, of all witnesses who may be called by the state.

Rev, Code Cr. Proc. sec. 7, sub. div. 3, gives the accused the right to be confronted by the witnesses against him in the presence of the court; it was error to read from the stenographer's transcript the testimony on preliminary examination of the witness for the state who were then absent from the state.

State v. Heffernan et al., 22 S. D., APPEAL RECORDS-COMPLAINT.

118 N. W., 1027.

1. A defendant is entitled, on appeal from a conviction before a justice on questions of both law and fact, to have all papers filed in the cause transmitted to the circuit court (Comp, Laws § 6182), and to the benefit of all legal questions raised on the pleadings in the justice court.

2. The sworn complaint required in all prosecutions before a justice (Comp. Laws, § 6147) is jurisdictional in all stages of the prosecution, and a defendant cannot be tried in the circuit court on an appeal on questions of both law and fact, unless such complaint has been certified up by the justice.

3. To hold that a court, in any stage of a criminal prosecution, may try and convict a defendant, without a semblance of such an accusation as the law expressly requires, would establish a precedent, unsanctioned by the statute, and at variance with his right, "to demand the nature and cause of the accusation against him, to have a copy thereof," as guaranteed by Section 7 of Article 6 of the Constitution of this state.

State v. Walker, 9 S. D., 438, 69 N. W. 586.

WITNESSES-PROCESS TO SECURE.

One is entited as a matter of right to the presence of his witnesses or every advantage of their presence, if their presence be procurable, and this necessarily includes adequate means to secure their presence or the advantages which would flow therefrom. Hence he is entitled, under reasonable regulations, to process for witnesses anywhere within the state, and to a reasonable opportunity to invoke the use of such process.

It is "the acts constituting the offense," not the conclusion of the pleader as to what crime such acts constitute, which is required. Facts are demanded, not conclusions of law, or obsolete technical phrases. The principal office of the indictment is to inform the accused of the "nature and cause of the accusation against him," to be thus informed being one of his most important constitutional rights. How can the required object be better attained than by stating the acts constituting the alleged offense "in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." State ex rel. Kotillinic v. Swenson, 18 S. D., 202, 99 N. W. 1114.

TRIAL-REMOVAL OF ACTION.

Comp. Laws, §§ 7312-7318, providing for the removal of a criminal action prosecuted by indictment, on the application of the state's attorney, from the court in which it is pending, if the offense charged be punishable with death or imprisonment in the penitentiary, where it appears that a fair and impartial trial cannot be had in such county or subdivision, violated Const. Art. 6, § 7.

In re Nelson, 19 S. D., 215, 102 N. W., 885.

INDICTMENT-JOINT CHARGE-CONVICTION.

Under an indictment charging an illegal sale of intoxicating liquor to several persons jointly, defendant cannot be convicted of an illegal sale to but one of the persons named.

State v. Williams, 20 S. D., 492, 107 N. W., 830.

§ 8. All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.

BAIL CAPITAL OFFENSES-EVIDENT PROOF AS GREAT PRESUMTION-BURDEN OF PROOF.

1. Under Const. Art. 6, § 8, persons arrested for capital offenses, where the proof is not evident or the presumption great, are entitled to bail as a matter of right, and Rev. Code Cr. Proc. §§ 585, 586, providing that bail may be admitted upon all arrests for criminal offenses punishable by death unless the proof is evident or the presumption great, but shall be taken only by the Supreme Court or circuit court or a justice or judge thereof "who shall exercise their discretion therein," is in conflict with the constitutional provision.

2. Under Const. Art. 6, § 8, and Rev. Code Cr. Proc. § 585, 586, containing substantially the same provisions, and section 356, providing that defendant in a criminal case is presumed to be innocent, the burden is on the state in an application for bail, to show that the proof is evident or the presumption great.

State v. Kauffman, 20 S. D., 620; 108 N. W., 246.

§ 9. No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense. EVIDENCE-ADMISSIONS.

The admission of a letter written by accused while in jail, to his father and mother, and delivered unsealed to the sheriff for mailing, containing an implied admission of his participation in the crime with which he was charged, was not objectionable as violating Const. Art. 6, § 9.

State v. Vey, 21 S. D., 612, 114 N. W., 719.

CONVICTION, REVERSAL OF JUDGMENT-ERROR.

When a defendant in a criminal action is convicted of the crime charged, and subsequently, on writ of error sued out by himself, procured in this court a reversal of the judgment of conviction, for errors in the charge of the trial court to the jury, he is not entitled to be discharged on the ground that he has once been put in jeopardy.

State v. Reddington, 8 S. D., 315; 66 N. W., 465.

RAPE FORMER JEOPARDY.

Defendant was convicted of rape on a female under the age of 16 years, and application for a new trial was denied; but inasmuch as the evidence showed that the female was more than 16 years old at the time when the offense was alleged to have been committed, the court on its own motion arrested the judgment, and ordered defendant to be held in custody for 10 days, during which period a second information was filed against him, charging the same offense, with the exception that the date of the commission of the of