STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 27, 1971

C.W. Renz
States Attorney, Campbell County
Herreid, South Dakota 57632

OFFICIAL OPINION NO. 71-29

A jury trial is not required in a peace bond proceedings SDCL 23-12

Dear Mr. Renz:

You have requested an official opinion based upon the following factual circumstances:

A threatened B with bodily harm whenever he had a chance to catch him alone. B, in pursuance to SDCL 23-12, has signed a complaint against A requesting A to be placed under peace bond. A warrant for the arrest of A has been issued, and served. The attorney representing A has requested a jury to try the facts before the justice of the peace.

Your question based upon these facts is:

Is a trial by jury in a peace bond proceedings a right preserved by the South Dakota and Federal Constitution?

It is my opinion that the answer to your question must be NO.

A reading of our peace bond procedure reveals that it is in ordinary form, and like numerous peace bond statutes does not authorize a jury trial to determine whether or not such bond will be required, or the person charged incarcerated until bond is posted. The determination of whether or not there is just reason to fear that a crime will be committed is left to the discretion of the magistrate.

The right to a jury trial arises from both the South Dakota and the Federal Constitution. However, as our court pointed out in Grigsby v. Larson (1910) 24 S.D. 628,124 N.W. 856;

The provisions of the federal and state constitutions that the right to trial by jury shall remain inviolable, has been construed to mean the right to common 1A.w trial by jury shall remain inviolable. Therefore, we must go back to the common-law distinction as to what causes were triable by jury' as a matter of right, and what were triable before the court without a jury.

Accord: Castle v. Gleason (1915) 35 S.D. 98,150 N.W. 895.

In State v. Nieuwenhuis (1926) 49 S.D. 181,207 N.W. 77, our court said:

At the time of the adoption of our constitution, an action to establish a lost will was triable to the court without a jury. Therefore this form of action is not one in which jury trial is guaranteed by the constitution. Grigsby v. Larson, 24 SD 628,124 NW 856; Shaw v. Shaw, 28 SD 221, 133 NW 292, Ann Cas 1914B 554; Byrne v. McKeachie, 29 SD 476, 137 NW 343; Castle v. Gleason, 35 SD 98, 150 NW 895. Whether this action be in equity or a special statutory proceeding, it is one in which the right to jury trial, if it exists; depends upon the statute now under consideration, and not upon a constitutional right.

It must be admitted that the question of peace bonds proceedings, and their existence at common law, and the right to jury trial, has never been raised in our Supreme Court. It is a question of first impression in this state.

There are few decisions relative to this question in legal literature. A review of the decisions of the question discloses that except in Indiana, (See State ex rel Lowe v. Tow (1892) 5 Ind. App. 261, 31 NW 1120 and Davis v. State, 138 Ind. 11, 37 NE 397) the courts are unanimous in determining that:

FIRST: A peace bond proceedings is not a criminal proceedings. This is true because criminal proceedings seek punishment for crimes committed, peace bond proceedings seek to prevent the commission of a crime.

SECOND: Peace bond proceedings at common law were not tried by jury.

THIRD: The right to a jury in a peace bond proceedings is not guaranteed either by Federal or State Constitutions.

FOURTH: The Legislature may provide peace bond proceedings without the intervention of jury and such statutes are valid. A right to a jury trial in such action depends entirely upon the will of the Legislature.

Ex Parte Way (1943) 56 Calif App (2) 814,133 P 2d 637;

Hertz v. Hamilton (1924) 198 Iowa 154, 197 NW 53;

Commonwealth v. Taub, (1958) 187 Pa. Super. 440,144 A 2d 628;

Ex Parte Gamer (1922) 93 Tex. Cr. 179,246 SW 371;

Ex Parte Johnson (Tex. Crim. App.) 391 SW 2d 407.

For older cases supporting the same conclusion see:

Howard v. State, 121 Ala. 21, 25 So. 1000;

Arnold v. State, 92 Ind. 187;

Ford v. State, 96 Miss. 85, 50 So. 497;

State ex rel Beslow v. Sargeant, 74 Minn. 242, 76 NW 1129.

In view of the status of the adjudicated cases, it is my opinion that in peace bond proceedings held in South Dakota by virtue of SDCL 23-12 that the statutes do not provide for a trial by jury, and such jury trial is not guaranteed by provisions of the South Dakota Constitution or the Federal Constitution. As I have indicated, it is my opinion that the question you have submitted must be answered NO.

Respectfully submitted,

Gordon Mydland
Attorney General