Volume 81 — South Dakota Reports

<bold>1. Criminal Law.</bold> Right of accused to counsel is a personal right which may be waived. <bold>2. Criminal Law.</bold> It is not within a court's province to require an unwilling defendant to be represented by unwanted counsel. <bold>3. Criminal Law.</bold> Absent unusual circumstances, an accused who is sui juris and mentally competent has the right to defend himself in a criminal case without aid of counsel. <bold>4. Criminal Law.</bold> To be binding, an accused's waiver of counsel must be made voluntarily and intelligently by a competent mind. <bold>5. Criminal Law.</bold> Determination of whether accused has validly waived his right to counsel depends upon particular facts and circumstances surrounding each case, including accused's background, experience, and conduct. <bold>6. Criminal Law.</bold> An accused has constitutional right either to defend in person or by counsel, but is not entitled as a matter of right to both. <bold>7. Criminal Law.</bold> The constitution does not forbid a court from appointing an attorney to confer and consult with an accused before honoring his waiver of counsel or accepting a plea, and practice should be followed in any doubtful case to assure an effective voluntary and intelligent waiver, particularly when accused is young, inexperienced in criminal procedures, of questionable competency, lacking in education, or in any case where gravity of penalty or complexity of crime seemingly dictates such procedure.<page_number>Page 122</page_number> <bold>8. Criminal Law.</bold> Defendant who had not secured counsel though he was not indigent and was afforded an opportunity to do so, and who informed court he intended to defend himself upon trial, did not present a doubtful case in which court might appoint an attorney to consult with him before honoring his waiver of counsel, where he was 40 years old and was competent and was familiar with criminal procedures and he fully understood his rights and gravity of kidnapping charge against him. <bold>9. Habeas Corpus.</bold> Habeas corpus petitioner failed to sustain burden of proving that he had not competently and intelligently waived his right to counsel where record affirmatively showed that trial court had repeatedly offered assistance of counsel and that petitioner had intelligently and understandingly rejected such offers. <bold>10. Criminal Law.</bold> Fact that defendant accused of kidnapping had, at time of his arraignment, indicated he might want counsel did not make his subsequent and final waiver of counsel ineffective.

<bold>1. Indictment and Information.</bold> It is ordinarily sufficient in information to follow language of statute in charging offense of assisting or aiding attempted escape from prison. SDC 13.0401, 13.1228. <bold>2. Indictment and Information.</bold> If information informs accused with reasonable certainty of charge made against him it is sufficient.<page_number>Page 129</page_number> <bold>3. Escape.</bold> Reference to punishment provisions in statute creating and defining offense of assisting or aiding attempted escape from prison was not necessary in information. SDC 13.1228 and subds. (1, 2). <bold>4. Criminal Law.</bold> To consummate an attempt to commit crime there must be something more than mere intention or preparation. <bold>5. Criminal Law.</bold> Attempt to commit crime must be manifested by acts which would end in accomplishment, but for intervening circumstances occurring apart from, and independent of, will of defendant. <bold>6. Criminal Law.</bold> "Preparation" antecedent to an offense consists in devising or arranging means or measures necessary for commission of offense. <bold>7. Criminal Law.</bold> "Attempt" to commit crime is direct movement toward commission after preparations are made and acts of accused must go so far that they would result in accomplishment of crime unless frustrated by extraneous circumstances. <bold>8. Escape.</bold> Preparatory act of defendant in purchasing hacksaw blades which were adapted to jail break did not constitute crime of assisting prisoners in attempt to escape, but when defendant placed paper bag containing hacksaw blades under county truck parked near jail, thereby performing only further act on his part that would have resulted in accomplishment of escape but for intervening circumstances unknown to him, defendant was guilty of the offense. SDC 13.0401, 13.1228. <bold>9. Criminal Law.</bold> Instruction fully instructing jury as to elements of offense charged and stating that, if jurors were not satisfied beyond reasonable doubt of existence of all elements referred to, they must find defendant not guilty, was not prejudicial.

<bold>1. Negligence.</bold> In absence of breach of some duty owed by manufacturer of machine causing death to decedent, manufacturer is not guilty of actionable negligence. <bold>2. Death.</bold> "Contributory negligence" is conduct which falls below standard to which deceased person should have conformed for his own protection and which is legally contributing cause cooperating with negligence of defendant in bringing about death.<page_number>Page 135</page_number> <bold>3. Negligence.</bold> Generally, one who voluntarily places himself in or remains in position which he knows or with reasonable care should know is dangerous cannot recover for the ensuing injury. <bold>4. Negligence.</bold> Decedent who was experienced in handling farm implements and who, without informing anyone, entered mixing tank of mobile feed unit when engine was running and beater and augur were plainly visible was guilty of contributory negligence more than slight, and no recovery could be had against manufacturer, owner of the machine, or owner's employees, one of whom put the machine in gear while decedent was inside the tank.

<bold>1. Highways.</bold> County commissioners had no authority to enter into a contract after requesting bids for rental of road equipment and operators therefor on an hourly rental basis where equipment and operators would be used to construct, repair and maintain entire county highway system under authority of "day labor" without preliminary plans, specifications, surveys, cost estimates or advertisement for bids of any kind on any project regardless of estimated cost. SDC 28.0115, 28.0306, 28.0308, 28.0309; SDC 1960 Supp. 28.0208, 28.0304, 65.07. <bold>2. Highways.</bold> Legislative purpose of requiring plans, specifications, cost estimates, and advertisements for bids on competitive basis before day labor may be employed is to provide for orderly and systematic development of county highway system, to provide comparative cost estimates and yardsticks, and to guard against favoritism, improvidence, extravagance, fraud, and corruption. SDC 28.0115, 28.0306, 28.0308, 28.0309; SDC 1960 Supp. 28.0208, 28.0304, 65.07.

<bold>1. Appeal and Error.</bold> In reviewing appellant's contention that evidence was insufficient to sustain verdict, Supreme Court was bound to accept evidence most favorable to verdict.<page_number>Page 422</page_number> <bold>2. Principal and Agent.</bold> Acts of an ostensible agent bind principal not because of agency, but because principal will not be permitted to deny ostensible agent's authority. SDC 3.0203. <bold>3. Frauds, Statute of.</bold> Statute requiring that when an estate in real property, other than estate at will or for term not exceeding one year, is transferred by agent his authority must be in writing did not prevent defendants from relying on estoppel to establish their defense of agency to enter into contract whereby premises were leased to defendants. SDC 3.0203, 51.1401. <bold>4. Husband and Wife.</bold> Where farm owner's husband, with her full knowledge and consent, leased property to defendants for period of five years and defendants incurred financial obligations on strength of such lease, jury, in absence of evidence of bad faith on part of defendants, could find that owner was estopped to deny authority of her husband to enter into lease. SDC 3.0203, 3.0303, 51.1401.

<bold>1. Appeal and Error.</bold> Letter not before trial court was not before reviewing court. <bold>2. Constitutional Law.</bold> Every presumption is in favor of validity and propriety of legislative action, and no statute should be held unconstitutional unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt. <bold>3. Constitutional Law.</bold> Constitutional provisions must be administered with caution. <bold>4. Taxation.</bold> Taxing power inheres in sovereignty. <bold>5. Taxation.</bold> Power to tax is legislative function. <bold>6. Taxation.</bold> Under some circumstances, some aspects of taxing process may be delegated to administrative officer, board, or tribunal if legislature retains sufficient and proper control over those aspects not delegable and if sufficient guide or standard is laid down by legislature for the administrative officials. <bold>7. Constitutional Law.</bold> <bold>Licenses.</bold> Provision imposing sales tax upon gross receipts of any person from the engaging or continuing in practice of any<page_number>Page 437</page_number> profession and making tax inapplicable to persons engaged in practice of healing arts as defined by specified statutes was sufficiently definite to afford commissioner of revenue practical standards for applying act without exercising legislative power. Laws 1965, c. 296; SDC 57.0101(16); SDC 1960 Supp. 57.01A05. <bold>8. Constitutional Law.</bold> Commissioner of revenue's interpretation and construction of terms of Sales Act statute would be only administrative guess as judicial question and would not constitute "legislating". Laws 1965, c. 296; SDC 57.0101(16); SDC 1960 Supp. 57.01A05. <bold>9. Statutes.</bold> Mere difficulty in ascertaining meaning of statute or fact that it is susceptible of different interpretations does not render it void; act somewhat vague and uncertain or not as clear as it might be is valid unless it is so imperfect as to render it impossible to execute it or ascertain legislative intent. <bold>10. Licenses.</bold> Exclusion of persons engaged in practice of healing arts and veterinarians from sales tax imposed on gross receipts of persons engaging or continuing in practice of any profession did not constitute an unconstitutional grant of immunity from taxation; the classification and exemptions were not arbitrary and were reasonable. Laws 1965, c. 296. <bold>11. Constitutional Law.</bold> Wisdom and policy in making tax classifications were for Legislature. <bold>12. Constitutional Law.</bold> Courts have no concern with wisdom or expediency of tax legislation.