Opinion
Nos. 43520, 43803.
April 13, 1973.
Criminal law — conviction of indecent liberties — new trial in interests of justice.
Appeal by Donald Dela Kallestad from a judgment of the Hennepin County District Court, Tom Bergin, Judge, whereby he was convicted of the crime of indecent liberties, and from an order denying his motion for a new trial. Reversed and remanded for a new trial.
Goff Goff, Sydney W. Goff, and Jerome S. Rice, for appellant. Warren Spannaus, Attorney General, George M. Scott, County Attorney, and Henry W. McCarr, Jr., Theodore R. Rix, Michael McGlennen, and Vernon E. Bergstrom, Assistant County Attorneys, for respondent.
Heard and considered en banc.
These are consolidated appeals from a conviction for taking indecent liberties in violation of Minn. St. 609.296, subd. 1(2), and from an order denying defendant's motion for a new trial. He was tried without a jury and sentenced to a term not exceeding 4 years in prison. After being committed for approximately 7 weeks, he was released on bail pending the disposition of this appeal.
A number of issues are raised by defendant. The principal thrust of his appeal is the claim that his guilt has not been demonstrated beyond a reasonable doubt.
A thorough consideration of the record by this court sitting en banc leads us to the conclusion that the interests of justice require a new trial. We are conscious of the need for restraint in reversing criminal convictions. State v. Kemp, 272 Minn. 447, 450, 138 N.W.2d 610, 612 (1965). Nevertheless, where we entertain grave doubts as to defendant's guilt, it is our duty to grant a new trial. State v. Johnson, 277 Minn. 368, 375, 152 N.W.2d 529, 533 (1967). As we suggested in State v. Boyce, 284 Minn. 242, 261, 170 N.W.2d 104, 116 (1969), upon a retrial defendant may wish to submit the issues to a jury.
Reversed and remanded for a new trial.