Frazer v. Chapin

• Decision Date: 27 April 1897
• Citation: 70 N.W. 1042,112 Mich. 469
• Court: Michigan Supreme Court
• Parties: FRAZER, PROS. ATTY., v. CHAPIN, JUDGE.

70 N.W. 1042

112 Mich. 469

FRAZER, PROS. ATTY., v. CHAPIN, JUDGE.

Supreme Court of Michigan

April 27, 1897

Application by Alan H. Frazer, prosecuting attorney, for mandamus to William W. Chapin, judge of the recorder's court of the city of Detroit, to vacate order granting new trial. Writ granted.

Geo. X M. Collier and John Atkinson, for respondent.

GRANT J.

One Harry Dale was on May 18, 1896, convicted of a felony, and sentenced to imprisonment in the state's prison. On January 6, 1897, his attorney made a motion for a new trial which, on January 26th, was granted. The relator insists that the court had no jurisdiction to grant a new trial at the time, on the ground that the statutory limit had expired. How. Ann. St. � 9576, is as follows: "The court in which the trial of any indictment shall be had may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial, for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms and conditions as the court shall direct." The statute fixes the terms of the recorder's court of the city of Detroit on the first Wednesday of January, March, May, July, September, and November, being six terms a year. The respondent returns that, at the date of the conviction, he entered an order granting 90 days in which to move for a new trial, and 60 days after the expiration of said 90 days in which to settle the bill of exceptions; that on May 20th respondent went away, returning September 10th; that on September 2d an order was entered in said court extending the time to move for a new trial and settle the bill of exceptions 45 days after August 15th; that on September 21st another order was entered, further extending the time 60 days; that the prosecuting attorney then said he had no objection to said order; that on November 20th the time was again extended 60 days for the like purposes; that the assistant prosecuting attorney was then present in court, and made no objection. Three full terms of court had passed between the date of the conviction and the date of the motion.

New trials are purely statutory, and courts have no right to annul the statute. At the common law there was no new trial. The statute was before this court in People v Marble, 38 Mich. 309, and is decisive of the question. Under that decision, the order was...