State v. Levy

24 Minn. 362 | Minn. | 1877

Gilfillan, C. J.

On October 19, 1875, Levy was convicted before the district court in the county of Winona of the crime of larceny of property exceeding $ 100 in value. The court thereupon, upon his motion, made an order that he be admitted to bail,pending the sentence, in the sum of' $1,200.

Pursuant to this order, October 21st, the defendants executed the recognizance sued on, which was conditioned that Levy should appear at the then term of the court, or at any other term of the court when required for that purpose, to receive the sentence of the court on said conviction, and to do and receive what the court should order in the premises; and he was thereupon released from custody.

A motion was made for a new trial, November 8th, and denied, and from the order denying it an appeal was taken, November 16th, to the supreme court. November 22d the supreme court, by order, stayed all the proceedings in the district court. At the April term, 1876, the supreme court affirmed the order denying a new trial, and the cause was remanded to the district court for further proceedings. State v. Levy, 23 Minn. 104.

Appellants claim that this recognizance is void for two reasons : First, because the district court had no jurisdiction to take bail after conviction; second, if it has such jurisdiction it can take it only under Gen. St. c. 117, §§ 8, 9, which regulate the taking of bail on appeal or writ of error, and require that the defendant shall recognize for his personal appearance at the supreme court.

At common law courts of superior jurisdiction possessed the power, though it was exercised rarely, and only where special circumstances existed to justify it, to admit to bail after verdict and before sentence. 1 Bac. Ab. 588, title “Bail;” 1 Bish. on Cr. Pr. §§ 698, 699; 1 Arch. Cr. Pr. & Pl. 187; McNiel's Case, 1 Caines' R. 72; Commonwealth v. Field, 11 Allen, 488.

The same power belongs to the district court unless taken away by the constitution or statute. The clause in the constitution, article 1, § 7, “that all persons before conviction are bailable, except,” etc., secures the right to be admitted to bail before conviction, but does not affect the power of the court to admit to bail, in its discretion, after conviction. And we find nothing in the statute upon 'the point, unless it be the sections relied on by appellants in support of their second objection to this recognizance. Section 2 of the same chapter provides that an appeal shall not stay execution of judgment unless an order is made by the judge who tried the cause, or a judge of the supreme court; and section 4, that writs of error shall not stay or delay the execution of judgments or sentence, unless allowed by one of the judges of the supreme court, with an express order thereon for a stay of proceedings on the judgment or sentence. Section 8 prescribes the character of the recognizance, if upon appeal or writ of error the defendant is admitted to bail, whether the bail is allowed by the judge who tried the cause or a judge of the supreme court. The condition must be for the defendant’s personal appearance at the next term of the supreme court, and to enter and prosecute his exceptions with effect, and abide the sentence’thereon, and in the meantime keep the peace and be of good behavior. Section 9, that if he does not so recognize he shall be committed to prison to await the decision of the supreme court. This excludes the taking, for the purpose of staying proceedings on appeal or writ of error, of any other bail than that mentioned in section 8. But it does not deprive the district court of its common law power to let to bail on the coming in of the verdict, in order to receive the sentence of' that court; a power which does not depend on an appeal or writ of error, as does that given by. section 8. The power to take bail, when the circumstances justify it, to enable the court to consider what sentence to pass, or the defendant to move for a new trial, is a useful and beneficial power, and ought not to be held as taken away, unless by express words or necessary implication of statute.

This recognizance was not executed for the purpose of the appeal, nor with any reference to it, but was executed before the order from which the appeal was taken was made. It was valid at its execution, and the subsequent appeal taken by the defendant, and the stay of proceedings by him, could not vitiate it, although the stay operated, perhaps, to prevent temporarily the district court from forfeiting the recognizance ; and had the supreme court proceeded to final judgment in the case, such action would have superseded the power of the district court to proceed any further. The return of the case from the supreme court to the district court, for further proceedings, vacated .the stay, and from that time the district court could proceed as though the stay had never been granted.

The statute (Gen. St. c. 66, § 216) provides: “When the verdict is given, and is such as the court may receive, the clerk shall immediately record it in full in the minutes, and read it to the jury and inquire of them whether it is their verdict, and if any juror disagrees, the fact shall be entered in the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete and the jury shall be discharged from the case.”

In this case the clerk, before recording the verdict, read it to the jury and inquired of them if it was their verdict, to which they assented, and were then discharged, and their verdict was then, against the objection of defendants, recorded.

Strictly, it ought to have been recorded first, and then read to the jury. But we do not regard the order in which it is done as matter of substance. The object of the statute is to ascertain if the verdict is unanimous, and to give every juror an opportunity to express his dissent, and this is attained by reading the verdict to the jury and inquiring of them if it is their verdict, although the clerk may not at the time have performed the clerical act of recording it in the minutes. It is impossible to see how the irregularity, if it be one, could have prejudiced the defendants.

We see no error in admitting evidence, nor want of evidence to sustain the verdict.

Order affirmed.