Mims v. State

• Decision Date: 20 April 1880
• Citation: 26 Minn. 494
• Parties: CHARLES R. MIMS <I>vs.</I> STATE OF MINNESOTA. (1st Case.)
• Court: Minnesota Supreme Court

26 Minn. 494

CHARLES R. MIMSvs.

STATE OF MINNESOTA. (1st Case.)

Supreme Court of Minnesota.

April 20, 1880.

Writ of error to the district court for McLeod county.

Davis, O'Brien & Wilson, for plaintiff in error.

Geo. P. Wilson, Attorney General, for the State.

GILFILLAN, C. J.

The plaintiff in error, having been convicted in the court below upon an indictment for embezzlement of county funds, made a motion for a new trial, which was denied, and from the order denying it appealed to this court, where the order was affirmed. (State v. Mims, ante, p. 190.) Thereupon the court below entered judgment, sentencing plaintiff in error to be confined at hard labor in the state prison for three years, to pay a fine of $29,228.06, and stand committed in prison until that fine is paid. Upon this, writ of error is brought. On this writ no errors occurring prior to the order denying a new trial can be considered. As to such errors, plaintiff had a hearing, or an opportunity to be heard, on the merits, on his appeal.

Various errors in the sentence are assigned. The first thing to consider is what this court may do if it find errors in the sentence. Plaintiff contends that in such case it has no power except to reverse. Whatever may have been the rule at common law, the statute, though not so precise in its terms as might be wished, evidently intends that this court may, upon appeal or writ of error upon a judgment in a criminal case, do more than merely to affirm the judgment, or reverse it, and order a new trial or an absolute discharge of the prisoner. The court may, if law and justice require, absolutely affirm or absolutely reverse (without attempting to modify) the judgment. In such case of affirmance or reversal, Gen. St. 1878, c. 117, § 7, prescribes what the court shall do: "If the court affirms the judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If it reverses the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, as the case may require." Section 8 makes provision for admitting a party to bail upon appeal or writ of error. Section 9 provides for committing a defendant who, upon his appeal or writ of error, fails to recognize, and proceeds, "and in that case the clerk of the court in which the conviction was had, shall file a certified copy of the record and proceedings in the case in the supreme court, and the court shall have cognizance thereof, and consider and decide the questions of law, and shall render judgment or make such order thereon as law and justice require; and if a new trial is ordered, the cause shall be remanded to the said district court for such new trial."

By its strict terms and punctuation, this may seem to apply only to a case where the defendant fails to recognize; but as there can be no reason why, in such a case, the court shall "consider and decide the questions of law, and shall render judgment or make such order thereon as law and justice require," while in case of defendant recognizing, pursuant to section 8, it shall only affirm or reverse, it must be held that this clause was...