225 N.W. 82 | Minn. | 1929
The trial was held at Slayton in Murray county. Defendant was at liberty on bail and resided in Slayton where he conducted a hotel. He was represented at the trial by three attorneys — Messrs. W. J. McLeod of Slayton, A. R. English of Tracy, and James H. Hall of Marshall. The jury retired in the afternoon of December 12, 1928, and returned their verdict about seven o'clock on the following morning. On December 27, 1928, defendant presented a proposed case for settlement and allowance, and at the same time submitted a motion to set aside the verdict and for a new trial. The proposed case submitted consisted of the reporter's transcript of the evidence and six affidavits attached to the notice of the application. The reporter's transcript contained only the proceedings prior to the retirement of the jury, and the affidavits — one by each of defendant's attorneys, one by defendant, one by the bailiff in charge of the jury, and one by the clerk of the court — were submitted as showing what occurred thereafter. These affidavits were not included in the settled case, but the court incorporated therein a statement from which it appears that after the jury retired Messrs. English and Hall stated to the court "that they did not care to wait for the verdict, or to be represented when the jury should return a verdict; but if it was a verdict of guilty, that then the court should notify A. R. English at Tracy and give him time to be present when sentence was pronounced;" that "the court thereby understood that the defendants waived their right to be present at the time of the bringing in of the verdict;" that the clerk being ill the court did not deem it necessary to call him at that early hour, "as the defendant was not being represented;" that the bailiff did not inform the court that he had been requested to notify Mr. McLeod and the defendant; that the judge received the verdict and read it to the jury and asked them if it was their verdict and that each juror answered in the affirmative; that as soon as the clerk appeared the verdict was handed to him and recorded; and that neither the defendant nor his counsel nor the clerk were present until after the verdict had been received and the jury discharged. *285
The settled case imports verity and is conclusive upon this court as to what took place in the court below, and cannot be varied or supplemented by affidavits as to such matters. If incomplete or inaccurate, the remedy is by a direct proceeding to amend or correct it. Hemstad v. Hall,
The case of State v. Knutson,
"Neither the Clemens case * * * nor the Gorman case * * * go further than holding that after reasonable efforts to notify a defendant at liberty on bail that the jury is ready to render a verdict in his trial the court, if efforts fail, may receive the verdict in his absence. We do not think it proper practice to go beyond this. The course pursued in the instant case is so irregular, loose and *286 contrary to the usual procedure in felony trials by the district courts of our state that had it been made the basis of a motion for a new trial a new trial should have resulted. But no motion for a new trial was made."
In the present case the motion was for a new trial. The court inferred from the statement of Messrs. English and Hall that defendant did not intend to be present; but they did not so state, and neither defendant nor his local attorney were parties to that conversation or intimated to the court in any way that they did not intend to be present. If the whereabouts of a defendant at liberty on bail are unknown to the officers and they are unable to notify him after a reasonable effort to do so, as in the Gorman case,
In respect to the point that the clerk was not present and did not record the verdict until after the jury had been discharged, it is sufficient to say that it was decided as long ago as State v. Levy,