Ex parte Holmes

Decision Date01 March 1887
Citation21 Neb. 324,32 N.W. 69
PartiesEX PARTE HOLMES.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

The time within which a motion for a new trial may be filed in a criminal case is fixed by statute, which is during the term of court at which the verdict is rendered, and, except for newly-discovered evidence, within three days after the verdict was returned, unless unavoidably prevented.

The filing of a motion for a new trial, at a term of the district court subsequent to the term at which a defendant was tried and convicted, and six months after he had been imprisoned in the penitentiary for the purpose of serving out his sentence, would confer no authority upon such district court to set aside the verdict and judgment and grant a new trial; and in such case, where the motion was sustained and a new trial granted, the order being void, the warden of the penitentiary would have no authority to surrender the prisoner to the sheriff of the county in which such conviction was had.

Habeas corpus.

D. A. Holmes, for relator.

The Attorney General, contra.

REESE, J.

This is an application to this court, in the exercise of its original jurisdiction, for a writ of habeas corpus, for the purpose of releasing one Henry Paulson from the custody of the warden of the penitentiary, and causing him to be delivered into the custody of the sheriff of Cherry county. From the petition and papers in the case, the following facts with reference to the imprisonment of Henry Paulson appear: At the March, 1886, term of the district court of Cherry county, he was tried upon a charge of murder, and found guilty of the crime of murder in the second degree. No motion for a new trial was made, and he was sentenced to hard labor in the penitentiary for the term of 15 years. Court adjourned sine die soon after pronouncing sentence, and within two or three days thereafter Paulson was conveyed to the penitentiary, and placed in the custody of the warden, as a convict, in the execution of the sentence. On the eleventh day of October, 1886, at the next succeeding term of court, a motion for a new trial was filed, and on the second day of December of the same year the motion was sustained, the verdict and judgment set aside, a new trial ordered, and the warden of the penitentiary directed to deliver the prisoner to the proper authorities of Cherry county, in order that he might be there held for a second trial. The warden, not feeling satisfied of the authority of the district court to grant a new trial upon a motion filed so long after judgment and sentence, upon the advice of the attorney general declined to surrender the custody of the prisoner, and, this action being brought, seeks the direction of this court as to his duty.

The only question presented is as to the jurisdiction or authority of the district court to set aside the verdict and judgment and grant a new trial upon motion filed after the adjournment of the court. In the case at bar the time which elapsed between judgment and sentence and the filing of the motion was about six months, and, until action on the motion, about nine months. The motion appears to have been filed at the next succeeding term of court after the judgment, by leave of court, and by the consent of the district attorney. If there was jurisdiction to hear the motion and make a legal order granting a new trial, it is the duty of the warden to surrender the prisoner. If there was no such authority or jurisdiction, the order was simply void, and the prisoner must remain in the penitentiary as a convict, no matter how just the order may have been, nor how much the present appearances of the case may indicate an unjust conviction, so far as this proceeeding may be concerned.

District courts have no inherent or common-law power to grant new trials in criminal cases. Their power originates and exists alone in the statutes. Looking, then, to the statute as the sole authority for the granting of new trials, we find the following provisions: “A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following reasons, affecting materially his substantial rights: First, irregularity in the proceedings of the court, or the prosecuting attorney, or the witnesses for the state, or any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial; second, misconduct of the jury, or the prosecuting attorney, or of the witnesses for the state; third, accident or surprise, which...

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5 cases
  • Hubbard v. State
    • United States
    • Nebraska Supreme Court
    • June 9, 1904
    ...may be granted at the same term, and within three days of the rendition of the verdict, unless unavoidably prevented. Ex parte Holmes, 21 Neb. 324, 32 N. W. 69;Davis v. State, 31 Neb. 240, 47 N. W. 851.In the latter case it is said: “The provisions of the statute limiting the time within wh......
  • Hubbard v. State
    • United States
    • Nebraska Supreme Court
    • June 9, 1904
    ... ... and within three days of the rendition of the verdict, unless ... unavoidably prevented. Ex parte" Holmes, 21 Neb. 324, ... 32 N.W. 69; Davis v. State, 31 Neb. 240, 47 N.W ... [100 N.W. 154] ... In the latter case, it is said: ...      \xC2" ... ...
  • Davis v. State
    • United States
    • Nebraska Supreme Court
    • January 20, 1891
    ...three days after the verdict was rendered, unless unavoidably prevented. Bradshaw v. State, 19 Neb. 644, 28 N. W. Rep. 323; Ex parte Holmes, 21 Neb. 324, 32 N. W. Rep. 69. In the case at bar the motion for a new trial was filed the fourth day after the return of the verdict. It is not based......
  • Nelson v. Farmland Security Company
    • United States
    • Nebraska Supreme Court
    • May 17, 1899
    ...rendered, the court was without authority to grant it. It might with propriety have been either overruled or stricken out. (Ex parte Holmes, 21 Neb. 324, 32 N.W. 69; Aultman v. Leahey, 24 Neb. 286, 38 N.W. Roggencamp v. Dobbs, 15 Neb. 620, 20 N.W. 100; Davis v. State, 31 Neb. 240, 47 N.W. 8......
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