STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 8, 1975

Mr. Kerry M. Cameron
States Attorney
Roberts County Courthouse
Sisseton, South Dakota 57262

OFFICIAL OPINION NO. 75-126

Witnesses to the signing of a criminal complaint

Dear Mr. Cameron:

You have requested an official opinion based on the following facts:

The existing practice in Roberts County requires all signings of criminal complaints to be witnessed by a magistrate. As of July 1, 1975, there will be only one magistrate in Roberts County. The requirement that the magistrate personally witness the signing of a complaint has already caused considerable inconvenience to all parties involved; complainants, arresting officers and the magistrate herself.

Based on the foregoing, your question is:

Does a notary public or the keeper of the seal of the City of Sisseton have the authority to witness and verify the signing of a criminal complaint?

SDCL 23-19-1 states:

A preliminary information is a verified statement in writing, presented to a magistrate, charging one or more persons with the commission of a designated public offense.

SDCL 23-19-2 states:

The word "complaint" as used in this title ... shall be interpreted to mean a verified statement in writing, charging one or more persons with the commission of a public offense… and filed by any person in any court having jurisdiction… Upon the filing of such a complaint, except as otherwise specially provided, the proceedings shall be the same as upon the filing of an information and its sufficiency shall be determined by the same rules.

SDCL 23-2-5 provides:

Every public offense must be prosecuted by indictment, presentment or information, 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; and

(3) An offense arising under the laws of this state or an ordinance, rule, or regulation of any city, town, commission, board, or officer, where the punishment is a fine not exceeding $100, or imprisonment not exceeding 30 days, or both such fine and imprisonment.

A "verified statement" is one which has been sworn to before a notary public or other officer authorized to administer oaths. In re James Passero and Sons, 237 App.Div. 638, 261 N.Y.S. 661 (1933), Gossard v. Vawter, 215 Ind. 581, 21 N.E.2d 416 (1939), Schorr v. New York City Housing Authority, 270 App.Div. 339, 59 N.Y.S.2d 700 (1946).

It is therefore my opinion that a criminal complaint may be verified by a notary public or other officer authorized to administer oaths, and the written verified statement presented to the magistrate at a later date, without jeopardizing the validity of the complaint. (See SDCL 18-3-1 as to which officers can administer oaths.)

Respectfully submitted,

William Janklow
Attorney General

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