Sam v. State

• Decision Date: 19 March 1928
• Docket Number: Criminal 670
• Citation: 33 Ariz. 421,265 P. 622
• Parties: B. W. L. SAM, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

265 P. 622

33 Ariz. 421

B. W. L. SAM, Appellant, v. STATE, Respondent

Criminal No. 670

Supreme Court of Arizona

March 19, 1928

APPEAL from an order of the Superior Court of the County of Mohave. J. E. Jones, Judge. Affirmed.

Mr. L L. Wallace and Messrs. Struckmeyer, Jennings & Strouss, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Frank J. Duffy Assistant Attorney General, and Mr. J. Hubert Smith, County Attorney (Mr. W. E. Patterson and Mr. J. J. Sweeney, of Counsel), for the State.

OPINION

LOCKWOOD, J.

Defendant, B. W. L. Sam, was convicted of first degree murder, and the death penalty was fixed by the verdict. Motions for new trial and in arrest of judgment were presented by the defendant and denied by the court. Thereafter, and on the thirty-first day of December, 1926, judgment and sentence were pronounced upon the verdict. Defendant duly perfected his appeal, and thereafter, but within six months from the date the judgment was rendered, defendant filed a motion to vacate the judgment and to vacate the order denying defendant's motion for new trial, based on the ground of fraud and perjury in procuring the verdict. These motions to vacate were denied by the trial court on the ground of want of jurisdiction, and defendant has appealed from the order denying them.

It is the theory of defendant that under paragraph 600, Revised Statutes of Arizona of 1913, Civil Code, the trial court may at any time within six months from making and entering a judgment vacate, set aside, or modify it, regardless of the fact that an appeal to this court has been perfected. Respondent contends, on the other hand, that after such appeal has been completed the trial court loses all jurisdiction over the case except to do what may be necessary in furtherance of the appeal.

Paragraph 600, supra, reads as follows:

"600. The court may, any time within six months after the making or entry of any judgment, order or other proceeding, relieve a party from any such judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; or may, for good cause shown, modify or set aside its judgments, orders or proceedings."

Under the common law trial courts had the inherent power to vacate, modify or set aside judgments during the term in which they were rendered, but had no such power after the term had expired, except under certain circumstances when the judgment was obtained by fraud. When our system of courts was changed, upon the adoption of our Constitution, terms of court no longer existed. In order to meet that condition and preserve the right of the trial court to set aside and modify its judgments, legislation was necessary, and it is obvious that paragraph 600, supra, was adopted for this purpose. By its language the time in which a court may act is fixed at six months instead of, as under the common law, the term at which the judgment was rendered. The statute therefore in substance merely affirms the common-law doctrine and fixes the period of six months in lieu of the no longer existing term of court. Hayward v. Knapp, 22 Minn. 5; Russell v. Gunn, 40 Minn. 463, 42 N.W. 391.

Ordinarily speaking, this power is invoked only in civil cases. We have, however, in Condos v. Superior Court, 29 Ariz. 186, 239 P. 1032, stated, referring to paragraph 600, supra:

"It is true that most of the cases in which this question has arisen have been civil ones, but, except where the constitutional provision in regard to former jeopardy would forbid, we see no reason in logic or justice why the same rule should not apply in a criminal proceeding."

In State v. McKelvey, 30 Ariz. 265, 246 P. 550, we inferentially, though not directly, limited the doctrine laid down in the Condos case, supra, by stating that at common law, where a defendant has entered upon the execution of a valid sentence, the court has no jurisdiction, even during the term at which the sentence was rendered, to set it aside and render a new sentence. Since, as we have stated, paragraph 600, supra, was undoubtedly intended as a mere affirmance of the common-law rule except as to the time during which the power could be exercised, we think the language in the Condos case, supra, limiting the application of paragraph 600 only by the constitutional provision regarding double jeopardy, was too broad. What we should have stated was that paragraph 600 applied to criminal as well as civil cases in so far as the power was exercised under the common law.

The question, then, for our consideration in this case, is whether or not the perfecting of the appeal divested the trial court of jurisdiction to vacate its judgment. There is a wealth of authorities upon the question, but they are greatly at variance in their reasoning and conclusions. This court in the case of Sullivan v. Woods, 5 Ariz. 196, 50 P. 113, in passing on the action of the lower court in setting aside a judgment for defendant and granting a judgment for the plaintiffs, after a notice of appeal and bond had been filed, said:

"The court, however, retained power over the judgment during the term, and the order which it did make was made during the term; and in the term it has the right to amend, set aside, or annul all orders and decrees made in the case. This is an inherent power in the court, and cannot be abridged or lost by the act of either party in taking steps necessary to perfect an appeal. There is nothing to appeal from until the judgment and decrees of the court are irrevocable by the court which pronounced them. The judgment of the court below in this case was not irrevocable by that court until the close of the term in which the judgment was entered." (Italics ours.)

Chief Justice BAKER, however, dissented, stating:

"The effect of the appeal was to invest this court with all jurisdiction over the cause, and deprive the district court of any jurisdiction thereover. This is a well-established rule, and is directly recognized by our statute."

Later in the case of Jackson v. Lebanon Res. etc. Co., 19 Ariz. 443, 171 P. 997, the court stated:

"The said appeal as perfected did not have the effect of superseding the decree; hence the trial court did not lose jurisdiction over the same, either by operation of law, by act of the parties appealing, nor in fact, as the court expressly retained jurisdiction of the matter upon the face of the decree, for the purpose of enforcing the equities of the parties."

It would seem from these decisions that this court was committed to the view that the perfecting of an appeal did not divest the lower court of jurisdiction to vacate the judgment appealed from. However, in the case of Bryan v. Inspiration Con. Cop. Co., 27 Ariz. 188, 231 P. 1091, the court, in referring to the effect of giving notice of appeal and filing the bond, said:

"These two acts result in a perfected appeal, a removal of the case to the appellate court, and a termination of the superior court's jurisdiction over it. . . ."

In 1926, in the case of Navajo Realty Co. v. County Nat. Bank, etc., 31 Ariz. 128, 250 P. 885, in passing on the authority of the trial court to enter a satisfaction of judgment after an appeal had been taken, we said:

"When an appeal to this court has been perfected, the trial court loses all jurisdiction of each and every matter connected with the case, except in furtherance of the appeal, unless it is expressly given jurisdiction by statute. . . . It is obvious on a moment's reflection that this must be so; if it were not, parties could at their will render the judgments of this court nugatory, and its decrees a laughing stock."

This last decision, while not expressly overruling Sullivan v. Woods and Jackson v Lebanon etc. Co., supra, does so in effect. In view, however, of the apparently conflicting decisions of this court and the fact that in none of them were the real merits of the proposition carefully considered, we have decided to examine the question upon its merits, uninfluenced by any previous...