CHAPTER 23A-6
INDICTMENT AND INFORMATION
23A-6-1 Indictment or information required for prosecution of offense--Exceptions.
23A-6-2 (Rule 7(b)) Reserved.
23A-6-3 Preliminary hearing required for filing felony information--Exceptions.
23A-6-4 (Rule 7(c)(1)) Allegations contained in indictment or information--Incorporation by reference--Citation of law--Error in citation.
23A-6-5 (Rule 7(c)(2)) Reserved.
23A-6-6 Additional allegations not required against accessory before fact.
23A-6-7 Contents required for sufficiency of indictment or information.
23A-6-8 Presumptions need not be stated--Judicial notice.
23A-6-9 Precise time of offense need not be stated.
23A-6-10 Endorsement of witnesses on information--Calling other witnesses.
23A-6-11 Allegation as to money or securities stolen.
23A-6-12 Description of money taken by robbery or theft.
23A-6-13 Allegations in indictment or information for perjury.
23A-6-14 (Rule 7(c)(3)) Sufficiency of indictment or information despite nonprejudicial defect.
23A-6-15 Erroneous allegation as to victim of offense.
23A-6-16 Unavailability of instrument on indictment or information for forgery.
23A-6-17 Statutory words not required in indictment or information--Interpretation of words and phrases.
23A-6-18 (Rule 7(d)) Surplusage stricken on motion.
23A-6-19 (Rule 7(e)) Amendment of information before trial--Allegation of new offense--Amendment during trial.
23A-6-20 Amendment to correct name of defendant.
23A-6-21 (Rule 7(f)) Reserved.
23A-6-22 Suppression of names and details in rape, incest, or sexual contact prosecution.
23A-6-22.1 Suppression of name of minor victim of rape, incest, or sexual contact and details of alleged acts.
23A-6-23 (Rule 8(a)) Joinder of related offenses in same indictment or information.
23A-6-24 (Rule 8(b)) Joinder of two or more defendants in same indictment or information.
23A-6-25 Election between offenses or counts not required--Separate statements in verdict.
23A-6-26 (Rule 9(a)) Warrant or summons on indictment--Delivery for execution--Warrant on defendant's failure to respond to summons.
23A-6-27 (Rule 9(b)(1)) Form of warrant--Contents--Endorsement as to bail.
23A-6-28 (Rule 9(b)(2)) Form and contents of summons--Time of required appearance--Signature.
23A-6-29 (Rule 9(c)(1)) Execution or service of warrant or summons--Arrested person brought before court.
23A-6-29.1 Powers granted magistrate judge.
23A-6-30 (Rule 9(c)(2)) Return of warrant or summons to court--Cancellation or delivery to another of unexecuted warrant or summons.
23A-6-31 (Rule 9(d)) Reserved.
23A-6-1. Indictment or information required for prosecution of offense--Exceptions.
Every public offense must be prosecuted by an indictment or by an information signed by a prosecuting attorney except:
(1) A proceeding for the removal of a civil officer of this state;
(2) An offense arising under the laws, rules, and regulations relating to the National Guard;
(3) An offense arising under the laws of this state which is a Class 2 misdemeanor or petty offense or which is punishable by a fine not exceeding two hundred dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment;
(4) An offense arising from the violation of an ordinance or bylaw of a unit of local government of this state.
Source: SDC 1939 & Supp 1960, § 34.2904; SDCL, § 23-2-5; SL 1978, ch 178, § 61; SL 1991, ch 187, § 6.
23A-6-3. Preliminary hearing required for filing felony information--Exceptions.
An information may be filed without a preliminary hearing against a fugitive from justice. No other information may be filed against any person for any felony until that person has had a preliminary hearing, unless that person waived his or her right to a preliminary hearing. All informations shall be filed with the court having jurisdiction of the offense by the prosecuting attorney prior to arraignment.
Source: SDC 1939 & Supp 1960, § 34.1503; SDCL §§ 23-20-2, 23-20-3; SL 1978, ch 178, § 63; SL 2014, ch 114, § 1.
23A-6-4. (Rule 7(c)(1)) Allegations contained in indictment or information--Incorporation by reference--Citation of law--Error in citation.
The indictment or the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The information must be signed by the prosecuting attorney to be valid. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.
Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown, but, if it is alleged that he committed it by more than one specified means, each means shall be stated in a separate count.
The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
Source: Supreme Court Rule 365, 1939; SDC 1939 & Supp 1960, § 34.3008; SDCL, § 23-32-5; SL 1978, ch 178, § 64.
23A-6-6. Additional allegations not required against accessory before fact.
No additional facts need be alleged in an indictment or information against an accessory before the fact than are required in an indictment against his principal.
Source: SDC 1939 & Supp 1960, § 34.0504; SDCL, § 23-10-4; SL 1978, ch 178, § 66.
23A-6-7. Contents required for sufficiency of indictment or information.
An indictment or information is sufficient if it can be understood therefrom:
(1) That it is entitled in a court having authority to receive it, although the name of the court is not stated;
(2) That the indictment was found by a grand jury of the county in which the public offense was committed;
(3) That the defendant is named or, if his name is unknown, that he is described by a fictitious name with a statement that his true name is unknown to the grand jury or prosecuting attorney;
(4) That the offense charged was committed within the jurisdiction of the county; and
(5) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.
Source: CCrimP 1877, § 222; CL 1887, § 7249; RCCrimP 1903, § 229; SL 1913, ch 242; RC 1919, § 4725; Supreme Court Rule 367, 1939; SDC 1939 & Supp 1960, § 34.3010; SDCL, § 23-32-12; SL 1978, ch 178, § 67.
23A-6-8. Presumptions need not be stated--Judicial notice.
Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.
Source: SDC 1939 & Supp 1960, § 34.3004; SDCL, § 23-32-21; SL 1978, ch 178, § 72.
23A-6-9. Precise time of offense need not be stated.
The precise time at which an offense was committed need not be stated in an indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material element of the offense.
Source: Supreme Court Rule 368, 1939; SDC 1939 & Supp 1960, § 34.3011; SDCL, § 23-32-17; SL 1978, ch 178, § 71.
23A-6-10. Endorsement of witnesses on information--Calling other witnesses.
The prosecuting attorney shall endorse upon each information the names of the witnesses known to him at the time of its filing. Any further endorsement of names upon the information shall be done only with permission of the court. This section shall not preclude calling any witnesses whose names or the materiality of whose testimony is first learned by the prosecuting attorney during the trial. This section does not require the endorsement of names of witnesses which are to be used only in rebuttal.
Source: SL 1978, ch 178, § 64.
23A-6-11. Allegation as to money or securities stolen.
In an indictment or information for the theft of money, bank notes, certificates of stock, or securities, or for a conspiracy to commit the theft of any such property, it is sufficient to allege the theft, or the conspiracy to commit theft, to be of money, bank notes, certificates of stock, or securities, without specifying the coin, number, denomination, or kind thereof.
Source: Supreme Court Rule 374, 1939; SDC 1939 & Supp 1960, § 34.3017; SDCL, § 23-32-15; SL 1978, ch 178, § 68.
23A-6-12. Description of money taken by robbery or theft.
In a prosecution for robbery or theft of money, it is sufficient to allege generally in the indictment or information a robbery or theft of money, and it is sufficient to maintain the charge in the indictment or information that money was obtained by robbery or theft without regard to a particular description of the money stolen or obtained.
Source: Supreme Court Rule 373, 1939; SDC 1939 & Supp 1960, § 34.3016; SDCL, § 23-32-16; SL 1978, ch 178, § 69.
23A-6-13. Allegations in indictment or information for perjury.
In an indictment or information for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in which the offense was committed, the court or person before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.
Source: CCrimP 1877, § 229; CL 1887, § 7256; RCCrimP 1903, § 236; RC 1919, § 4732; Supreme Court Rule 376, 1939; SDC 1939 & Supp 1960, § 34.3019; SDCL, § 23-32-25; SL 1978, ch 178, § 70.
23A-6-14. (Rule 7(c)(3)) Sufficiency of indictment or information despite nonprejudicial defect.
No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant.
Source: SDC 1939 & Supp 1960, § 34.3002; SDCL, § 23-32-20; SL 1978, ch 178, § 73.
23A-6-15. Erroneous allegation as to victim of offense.
When an offense involves the commission of, or an attempt to commit, a theft or other private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured, or the ownership of the property taken, is not material.
Source: Supreme Court Rule 370, 1939; SDC 1939 & Supp 1960, § 34.3013; SDCL, § 23-32-14; SL 1978, ch 178, § 74.
23A-6-16. Unavailability of instrument on indictment or information for forgery.
When an instrument, which is the subject of an indictment or information for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information and established during the trial, any misdescription of the instrument is immaterial.
Source: Supreme Court Rule 375, 1939; SDC 1939 & Supp 1960, § 34.3018; SDCL, § 23-32-24; SL 1978, ch 178, § 75.
23A-6-17. Statutory words not required in indictment or information--Interpretation of words and phrases.
Words used in a statute to describe a public offense need not be strictly recited in an indictment or information, but other words conveying the same meaning may be used. Words used in an indictment or information shall be interpreted according to their usual meaning in common language, except words and phrases defined by law, which shall be interpreted according to their legal meaning.
Source: SDC 1939 & Supp 1960, §§ 34.3003, 34.3005; SDCL, §§ 23-32-18, 23-32-19; SL 1978, ch 178, § 76.
23A-6-18. (Rule 7(d)) Surplusage stricken on motion.
A circuit court upon motion may strike surplusage from an indictment or information.
Source: SL 1978, ch 178, § 77.
23A-6-19. (Rule 7(e)) Amendment of information before trial--Allegation of new offense--Amendment during trial.
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
After commencement of a trial, the trial court may permit the prosecuting attorney to amend the information at any time before a verdict or finding is made, if no additional or different offense is charged and substantial rights of the defendant are not thereby prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.
Source: Supreme Court Rule 397, 1939; SDC 1939 & Supp 1960, § 34.3628; SDCL, § 23-39-1; SL 1978, ch 178, § 78.
23A-6-20. Amendment to correct name of defendant.
When a defendant is prosecuted by a fictitious name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, with reference to the fact that he was prosecuted by the name mentioned in the indictment, information, or complaint. When a defendant is prosecuted by an erroneous name, and in any stage of the proceedings his correct name is discovered, it must be inserted in the subsequent proceedings without reference to the fact that he was prosecuted by any other name.
Source: Supreme Court Rule 369, 1939; SDC 1939 & Supp 1960, § 34.3012; SDCL, § 23-32-13; SL 1978, ch 178, § 78.
23A-6-22. Suppression of names and details in rape, incest, or sexual contact prosecution.
Upon the request of the victim in a prosecution for rape, incest, or sexual contact, the court shall order that the names of the victim or the accused or the details of the alleged offense be suppressed until:
(1) The accused is arraigned;
(2) The charge is dismissed; or
(3) The case is otherwise concluded;
whichever occurs first.
Source: SL 1975, ch 169, § 4; SDCL Supp, § 23-32-28; SL 1978, ch 178, § 81; SL 1983, ch 182; SL 1996, ch 154.
23A-6-22.1. Suppression of name of minor victim of rape, incest, or sexual contact and details of alleged acts.
Notwithstanding the provisions of § 23A-6-22, upon the request of any minor victim or the minor victim's parent or guardian in a prosecution for rape, incest, or sexual contact, the court shall order that the name of the minor and the specific details of the alleged acts be suppressed if the trial court finds a compelling interest after consideration of the following factors: the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of the parents and relatives.
Source: SL 1995, ch 131; SL 2011, ch 124, § 1.
23A-6-23. (Rule 8(a)) Joinder of related offenses in same indictment or information.
Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Source: Supreme Court Rule 366, 1939; SDC 1939 & Supp 1960, § 34.3009; SDCL, § 23-32-6; SL 1978, ch 178, § 82.
23A-6-24. (Rule 8(b)) Joinder of two or more defendants in same indictment or information.
Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.
Source: SL 1978, ch 178, § 83.
23A-6-25. Election between offenses or counts not required--Separate statements in verdict.
The prosecuting attorney shall not be required to elect between different offenses or counts set forth in an indictment or information, but a defendant may be convicted of any number of offenses charged, and each offense upon which a defendant is convicted must be stated in the verdict.
Source: Supreme Court Rule 366, 1939; SDC 1939 & Supp 1960, § 34.3009; SDCL, § 23-32-7; SL 1978, ch 178, § 84.
23A-6-26. (Rule 9(a)) Warrant or summons on indictment--Delivery for execution--Warrant on defendant's failure to respond to summons.
Upon request of a prosecuting attorney, a circuit court judge, in the case of a felony, and a magistrate judge, in the case of a misdemeanor or at the direction of the presiding judge of the circuit in the case of a felony, may issue a warrant for each defendant named in an indictment. A circuit court judge, or magistrate judge in an appropriate case, may issue a summons instead of a warrant upon the request of a prosecuting attorney. Upon like request or direction a court may issue more than one warrant or summons for the same defendant. The warrant or summons shall be delivered to a law enforcement officer or other person authorized by law to execute or serve it. If a defendant fails to appear in response to a summons, a warrant shall be issued.
Source: SDC 1939 & Supp 1960, § 34.1235; SDCL, § 23-31-9; SL 1978, ch 178, § 85; SL 1999, ch 121, § 2.
23A-6-27. (Rule 9(b)(1)) Form of warrant--Contents--Endorsement as to bail.
A warrant shall be in the form prescribed by § 23A-2-4. It shall describe the offense charged in the indictment, and it shall command that the defendant be arrested and brought before the court. The amount of bail, if any, shall be fixed by the court and endorsed on the warrant.
Source: SL 1978, ch 178, § 86; SL 1999, ch 121, § 3.
23A-6-28. (Rule 9(b)(2)) Form and contents of summons--Time of required appearance--Signature.
A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before a circuit court judge or magistrate judge, as the case may be, at a stated time and place. The time stated may not be more than ten days from the date the indictment was presented to the court. The summons shall be signed by the judge.
Source: SL 1978, ch 178, § 87; SL 1999, ch 121, § 4.
23A-6-29. (Rule 9(c)(1)) Execution or service of warrant or summons--Arrested person brought before court.
A warrant shall be executed or a summons served as provided in §§ 23A-2-7 to 23A-2-11, inclusive. The officer executing a warrant shall bring the arrested person promptly before the court for the purpose of admission to bail.
Source: SDC 1939 & Supp 1960, § 34.1231; SDCL, § 23-31-15; SL 1978, ch 178, § 88.
23A-6-29.1. Powers granted magistrate judge.
If directed to do so by the presiding judge of the circuit, a magistrate judge may set bail and take not guilty pleas in felony cases.
Source: SL 1999, ch 121, § 1.
23A-6-30. (Rule 9(c)(2)) Return of warrant or summons to court--Cancellation or delivery to another of unexecuted warrant or summons.
A law enforcement officer executing a warrant shall make return thereof to the court. At the request of a prosecuting attorney any unexecuted warrant may be returned and canceled by the court. On or before the return day the person to whom a summons was delivered for service shall make a return thereof. At the request of a prosecuting attorney made at any time while an indictment is pending, a warrant returned unexecuted and not canceled or a summons returned unserved, or a duplicate thereof, may be delivered to a law enforcement officer or other person for execution or service.
Source: SL 1978, ch 178, § 89; SL 1999, ch 121, § 5.
