¶1 (dissenting) : I concur in the majorit)?- opinion in all particulars except as to the modification of sentence.
¶2 The Magistrate fixed the sentence within legal limits with knowledge of the attending circumstances. As a part of his return in the habeas corpus proceeding he attached *357 his affidavit as to the reasons why he considered the sentence proper. These reasons involve the character of the defendant, various previous offenses, including prior habitual violation of the section prohibiting carrying concealed weapons. As a part of that return he also included affidavits of a rural policeman that defendant “has given deponent more trouble in the matter of the prohibition law, gambling, violation of the Sunday law, and general lawless behavior, than any other citizen with whom he has ever had to deal,” and an affidavit from a policeman as to bad character and an admission by defendant as to habitual carrying of concealed weapons; also, a paper signed by about 50 citizens of the community stating the bad reputation of defendant for lawlessness.
¶3 In his return on this appeal all these matters were expressly included and sent up as a part of the record as well as affidavits for the defendant. The pertinent part of the order appealed from is as follows:
“It is immemorial custom for Courts to take into consideration the fact that a man who is charged with a crime pleads guilty, and hot in such cases to impose the maximum penalty, and there does not appear in the charge or in the plea in this case any special reason why the Magistrate should have deviated such custom in this particular case. I am, therefore, of the opinion that the sentence as imposed was unduly harsh and severe; as there was a plea of guilty, and no testimony taken and signed by witnesses, no testimony was before me and I heard none of the facts of the case. Papers used at other hearings were not considered by me. My decision is upon the appeal.”
¶4 Prom the above it will be seen that Judge Memminger not only refused to consider the record thus submitted, but also expressly stated that he knew nothing of the facts. A blind presumption that the Magistrate erred is not an exercise of discretion. It is not necessary to my position *358 to contend that the refusal to consider these affidavits was error of law.
¶5 I think that a Judge cannot modify as an act of discretion unless he knows, or is presumed to know, the facts. In this case there is no knowledge, and the presumption is expressly negatived, therefore, I think his order should not be upheld as an exercise of discretion.