State v. Lund

• Decision Date: 30 March 1928
• Docket Number: No. 26631.,26631.
• Citation: 174 Minn. 194,218 N.W. 887
• Parties: STATE v. LUND.
• Court: Minnesota Supreme Court

218 N.W. 887

174 Minn. 194

STATE v. LUND.

No. 26631.

Supreme Court of Minnesota.

March 30, 1928.

Appeal from District Court, Becker County; John A. Roeser, Judge.

Otto Lund was convicted of second degree manslaughter, and he appeals. Appeal dismissed.

M. J. Daly and M. J. Daly, Jr., both of Perham, and Dennis & Bell, of Detroit Lakes, for appellant.

G. A. Youngquist, Atty. Gen., and C. U. Landrum, County Atty., and A. O. Sletvold, both of Detroit Lakes, for the State.

OLSEN, C.

Defendant appeals from an order denying his motion for a new trial. He was convicted of manslaughter in the second degree, on April 2, 1926, and duly sentenced on April 7, 1926. On April 10, 1926, he was admitted to bail by the trial court "until the further order of this court, or, in case of appeal, the decision of the Supreme Court of this state." On September 21, 1926, he served notice of motion for a new trial, to be heard before the court on October 4, 1926. On October 2, 1926, pursuant to a written stipulation of counsel a settled case was signed by the judge. The record is silent as to further proceedings until September 13, 1927. On that date the court made its order denying the motion for a new trial and reciting therein that the motion for a new trial was not heard on October 4 1926, but that "such motion and hearing, however, were thereafter continued by consent of the parties and were again brought on before the undersigned, one of the judges of this court, at its chambers in the courthouse, in the city of Fergus Falls, in Otter Tail county, Minn., on the 19th day of May, 1927." On October 3, 1927, this appeal was taken.

1. A motion for a new trial in a criminal case must not only be noticed, but must be heard by the trial court before the time to appeal from the judgment therein expires. Here the time to appeal from the judgment expired on October 7, 1926, and the motion for a new trial was not brought on for hearing until May 19, 1927. Counsel cannot bring such motion on for hearing by consent or stipulation after the time to appeal from the judgment has expired. Such proceeding would amount to an extension of the time to appeal in a criminal case. The time to appeal cannot be extended by consent or waiver. Brown v. County of Cook, 82 Minn. 542, 85 N. W. 550; Harcum v. Benson, 135 Minn. 23, 160 N. W. 80; Churchill v. Overend, 142 Minn. 102, 170 N. W. 919. As stated in the case last noted, "an indirect attempt is made to accomplish that which cannot be done directly."

Prior to 1866, the removal of causes to the Supreme Court was governed by chapter 71, Stat. 1858. This chapter provided that judgments and orders in civil and criminal cases could be so removed, by appeal, within six months from the entry thereof, and by writ of error not later than one year after entry of judgment in the matter. There was some uncertainty as to whether or not this statute authorized appeals in criminal cases, but it was conceded that such cases could be brought up by writ of error, or by certification by the trial court, such certification being provided for by a different chapter. See Bonfanti v. State, 2 Minn. 123 (Gil. 99). By the revision in 1866, the procedure for removal of criminal cases to the Supreme Court was separated from that in civil cases and, by chapter 117, Stat. 1866, it was provided that criminal cases might be so removed by appeal or writ of error at any time within six months after conviction. This law was then amended in 1870 so as to read as now found in section 10747, G. S. 1923. The change consisted in substituting the word "judgment" for the word "conviction," and in inserting the words "or after the decision of a motion denying a new trial."

There was no reference to a motion for a new trial in criminal cases, or to an appeal from an order denying same, in the prior statute, and there is none now except in this statement inserted in section 10747. It was and is provided in section 10752 and 10754 that the Supreme Court may order or direct a new trial as a result of its review on appeal. There would be both logic and weight in a contention that the Legislature had no intention of extending the time for appeal by this amendment of 1870, that the limitation of six months after judgment applies as well to appeals from the denial of motions for a new trial as to writs of error and appeals from judgments, and that the only purpose of the amendment was to expressly provide for...