People v. Swenson

Brooke, J.

This case has been once reviewed by this court, upon exceptions before sentence, and will be found reported at 162 Mich. 397 (127 N. W. 302). Respondent, having been duly sentenced, has now removed his case to this court by writ of error. His avowed purpose in again bringing the matter to the attention of the court is to obtain a judgment of the court of last resort in this State, to the end that (if unfavorable to respondent) he may apply to the Supreme Court of the United States for a writ of error.

We are of opinion that it was unnecessary for respondent to sue out a writ of error after the case had been finally decided upon exceptions before sentence. From a perusal of the opinion in Lyng v. Michigan, 135 U. S. 161 (10 Sup. Ct. 725), it would appear that that course was there followed, though we have been unable to find that the case was again before this court after sentence. Upon exceptions before sentence it was reviewed, and the conviction affirmed. People v. Lyng, 74 Mich. 579 (42 N. W. 139). A different course was obviously followed in Reetz v. Michigan, 188 U. S. 505 (23 Sup. Ct. 390). See People v. Reetz, 127 Mich. 87 (86 N. W. 396).

Under our practice the affirmance of a conviction before sentence is a final adjudication of the case. Nothing remains for the trial court to do but to impose sentence. We note, however, that in Congdon v. Michigan, 200 U. S. 612 (26 Sup. Ct. 753), (see People v. Congdon, 137 Mich. 133 [100 N. W. 266]), the Supreme Court dismissed the case for the want of jurisdiction, and an examination of the cases there cited (Schlosser v. Hemphill, 198 U. S. 173 [25 Sup. Ct. 654], and Haseltine v. Central Nat. Bank, 183 U. S. 130 [22 Sup. Ct. 49]) would seem to indicate that the court proceeded upon the assumption that a judgment of this court, affirming a conviction before sentence, was not a final judgment. While, as before indicated, we cannot accept this view, we feel constrained in the present instance to affirm the judgment after sentence, in order that respondent’s right to have his case reviewed by the Supreme Court of the United States may not be imperiled through a holding by that court that it was without jurisdiction.

The judgment is affirmed.

Moore, McAlvay, Blair, and Stone, JJ., concurred.