Page:Dakota Territory Reports.djvu/386

 The People v. Nugent, 4 Cal., 341; People v. Vanard, 6 Cal., 562; People v. Wilson, 9 Cal., 260; People v. English, 30 Cal., 215; Exparte Ah Cha, 40 Cal., 426; 44 Cal., 32; People v. Congleton, 44 Cal., 92; Exparte Max, 44 Cal., 579; People v. Murat, 45 Cal., 281; People v. Martin, 47 Cal., 112.

The defendant was legally and regularly convicted of a misdemeanor. Everything is right but the sentence, which is in excess and illegal; this court, therefore, has the power to affirm the conviction, modify the judgment, and remit the case to the court below that the proper judgment may be there imposed. For this court is not confined to the mere alternative of reversing or of affirming a judgment. It has also the authority to modify a judgment, and as in civil cases, to direct the proper judgment to be entered. That is to say, it may reduce, or lower, in extent or degree, any sentence so as to make it conformable to law, where a mistake or error is shown to exist in it. It may change the form of the judgment, or give a new form to it, so as to bring it within the jurisdictional scope of a legal conviction.

It is therefore adjudged that the said judgment of the District Court of the county of Yankton, rendered on the first day of May, 1877, sentencing the said Charles M. Conrad to imprisonment in the Territorial prison for five years, be and the same is hereby modified and reduced in this, to-wit: that instead of the said imprisonment in the Territorial prison, the said Charles M. Conrad shall either undergo an imprisononmentimprisonment [sic] in the county jail not exceeding one year, or he shall pay a fine not exceeding one thousand dollars, or be sentenced to both such fine and imprisonment. And in order to carry this modified judgment into effect, it is directed that the said District Court cause the said Charles M. Conrad to be brought before it, to receive judgment accordingly.

All the Justices concur.

—The following cases have been examined and considered in reference, generally, to the present case: Dawson v. The People 25 N. Y. 399; Keefe v. The People, 40 N. Y., 348: Dedieu v. The People, 22 N. Y., 184; Ratzky v. The People, 29 N. Y., 133; Harris v. People, 59 N. Y., 599; Slattery v. People, 1 Hun, 311, affirmed by Ct. of App. in 58 N. Y., 354.