
    STATE, Plaintiff v. WAGNER, Defendant
    (196 N.W.2d 360)
    (File Nos. 11102, 11113.
    Opinion filed April 17, 1972)
    Arnold C. Jones, Deputy State's Atty., Rapid City, for plaintiff.
    James W. Olson, Rapid City, for defendant.
   BIEGELMEIER, Judge.

Petitions for permission to appeal from intermediate orders (SDCL 15-26-10 and SDCL 23-51-5) have heretofore been determined only by order; however, by reason of the importance of questions of procedure hereafter mentioned it was deemed advisable to write an opinion.

In #11102 the state has attempted to appeal from what is denominated an order of the Municipal Court of the City of Rapid City granting a defendant's motion to suppress certain evidence and from the court's final judgment granting defendant's motion to dismiss the state's complaint, and in #11113 the state has filed a petition for an intermediate appeal from each of said rulings. It appears that defendant was charged with a criminal offense by the filing of a preliminary complaint or information; that while the complaint and papers thereafter filed were titled in the municipal court, under SDCL 23-19-1 it was deemed presented to a magistrate, that is, the judge of the municipal court, and all proceedings therein, including the preliminary hearing, were before the judge as a committing magistrate under SDCL 23-21-3 and 23-21-4 and not acting for or on behalf of the court as such. See SDCL 23-21-4 which designates persons who are magistrates and includes judges of all courts. All orders and rulings therein were entered by him as a committing magistrate. In State v. Ferguson, 48 S.D. 346, 204 N.W. 652, the court stated:

"It is sufficient answer to this contention to point out that a committing magistrate, conducting a preliminary examination in a criminal case, is not a 'court' within the meaning of this section of the Constitution.
'A preliminary hearing is in no sense a trial. * * * Such county judge, when sitting as a magistrate, is not sitting as a county court any more than would a justice of this court, if sitting as a magistrate upon a preliminary hearing, be sitting as the Supreme Court.' "

and further:

" * * * we hold a committing magistrate as such is not a court, and does not exercise in any strict sense judicial power".

That the ruling of a committing magistrate at a preliminary hearing is not a final judgment of a court, a trial or a bar to subsequent prosecution in the event a defendant is not held to answer the charge was stated in State v. Reggio, 84 S.D. 687, 176 N.W.2d 62, in the following words:

"One of its (a preliminary hearing's) principal purposes is to insure an accused that he will not be called upon to stand trial until a magistrate has determined after such examination that a public offense has been committed and that there is sufficient cause to believe the defendant guilty thereof. SDCL 23-27-16. Our statutes do not prevent a subsequent prosecution for the same offense if he is discharged as a result of the examination. It is in no sense a trial of the person accused."

The authority of the magistrate is set out in SDCL 23-27; as to the disposition of the hearing he is directed either to discharge the defendant, SDCL 23-27-13, or hold him to answer the offense, SD-CL 23-27-16. Disposition of property seized under a search warrant is provided for in SDCL 23-15-18 through 23-15-23. A reading of our statutes shows the general use of the term magistrate. See SDCL 23-15, 23-16, 23-17, 23-21, 23-22 and 23-23. The distinction of a person acting as a judge of a court and a magistrate is shown by the tenor of applicable statutes, especially those that direct actions by the magistrate to be taken thus: "I order him to be discharged", SDCL 23-27-13; "I order that he be held to answer the same", SDCL 23-27-16; and "I have admitted him to bail", SDCL 23-27-18. Through inadvertence the legislature in enacting Ch. 118, S.L. 1966, now SDCL 23-27-11, provided that an action started before a justice of the peace could be transferred to a municipal or county court rather than to judges of these courts as committing magistrates.

The present proceeding is not within the reach of SDCL 23-27-11, but is mentioned as it is not in accord with the other statutes above cited; we call attention to it for such consideration and correction as the legislature may deem necessary.

The right to appeal is statutory and therefore does not exist in the absence of a statute permitting it. State v. Davis, 77 S.D. 87, 86 N.W.2d 174. In criminal actions SDCL 23-51-2 grants the right of the state to appeal from orders and judgments there listed, and SDCL 23-51-5 authorizes the Supreme Court to permit an appeal from an intermediate order. The references there to orders and judgments are to those of a court, not to rulings of a magistrate.

Incidentally, the rulings complained of are not within the four categories stated in SDCL 23-51-2. The state's notice of appeal refers to the appeal as being from a final judgment of the municipal court; as appears herein, the judge of the municipal court was acting as magistrate and the rulings were those of a magistrate and not of a court. In any event, under SDCL 23-51-2 no appeal may be taken to this court from a decision of a committing magistrate.

An order will be entered in #11102 dismissing the state's appeal, and in #11113 an order will be entered denying the petition for an intermediate appeal.

All the Judges concur.  