State v. Kallestad

206 N.W.2d 557 (1973)

STATE of Minnesota, Respondent, v. Donald Dela KALLESTAD, Appellant.

Nos. 43520, 43803.

Supreme Court of Minnesota.

April 13, 1973.

Goff & Goff, Sydney W. Goff, St. Paul, Jerome S. Rice, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Jr., Theodore R. Rix, Michael H. McGlennen, and Vernon E. Bergstrom, Asst. County Attys., Minneapolis, for respondent.

Heard and considered en banc.

PER CURIAM.

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.