State v. Brent

• Citation: 30 Wn.2d 286,191 P.2d 682
• Decision Date: 26 March 1948
• Docket Number: 30170.
• Parties: STATE v. BRENT.
• Court: United States State Supreme Court of Washington

191 P.2d 682

30 Wn.2d 286

STATE v. BRENT.

No. 30170.

Supreme Court of Washington, En Banc.

March 26, 1948

On rehearing en banc.

Departmental opinion, reversing an order granting a new trial, reversed and order affirmed.

For departmental opinion, see 183 P.2d 495.

MALLERY C.J., and STEINERT and JEFFERS, JJ., dissenting.

Appeal from Superior Court, Island County; Charles R. Denney, judge

Alden B. Whelan, of Coupeville, for appellant.

Edwards E. Merges, of Seattle, for respondent.

H Sylvester Garvin and Ralph A. Horr, both of Seattle, John M Wilson, of Port Angeles, Arthur G. Dunn, of Seattle, and Glenn R. Madison, of Bellingham, amici curiae.

HILL Justice.

After an Island county jury had found Harold Theodore Brent guilty of murder in the second degree, a motion for a new trial was interposed on five of the grounds enumerated in Rem.Rev.Stat. § 399, prior to its amendment in 1933, in the language of that section. All of these grounds except the first, which is not material here, are likewise grounds for a new trial under Rem.Rev.Stat. § 2181, although the phraseology in several instances is quite different. The order granting a new trial stated the grounds on which it was entered as follows: 'It is therefore Ordered, Adjudged and Decreed that the defendant's motion for new trial be and the same is hereby granted upon the following grounds: 1. Error of law occurring at the trial; 2. The verdict is contrary to the law and evidence.'

The state appealed, contending that the order could not be sustained on either of the grounds assigned. A departmental opinion reversing the order granting a new trial was filed July 24, 1947. State v. Brent, Wash., 183 P.2d 495. The facts are fully set forth therein and will not be repeated here.

After a rehearing en banc, we are unanimously of the view that the departmental opinion is correct in so far as it determines that no error of law occurred which warranted the granting of a new trial. We approve and adopt the statement and reasoning of the departmental opinion in disposing of that issue and in its discussion of the question of newly discovered evidence.

We agree with the respondent that the statute applicable to the motion for a new trial in a criminal case was Rem.Rev.Stat. § 2181, and that the discussion of Rem.Rev.Stat. § 399 and the 1933 amendment thereof, was not relevant; and the majority of the court does not adhere to the conclusions reached by department No. 2 of this court in the law point numbered two of its opinion (128 Wash. Dec. 371, 380), being law points numbered five, six, and the first paragraph of seven, as reported in 183 P.2d 495, 500. The writer of the departmental opinion doubtless was misled by the fact that respondent's motion for a new trial obviously was based on Rem.Rev.Stat. § 399, prior to the amendment of 1933, and used the language of that section in setting forth the first, third, fourth, seventh, and eighth causes for a new trial, as set forth therein, as the five grounds on which he based his motion for a new trial. As previously indicated, there is considerable difference between the phraseology of Rem.Rev.Stat. § 399, both Before and after its amendment in 1933, and that of Rem.Rev.Stat. § 2181. For example, respondent asked for a new trial on the ground of 'Insufficiency of the evidence to justify the verdict, or that it is against law,' which was substantially the seventh cause for a new trial as set forth in Rem.Rev.Stat. § 399, prior to the 1933 amendment; whereas the corresponding cause as set forth in Rem.Rev.Stat. § 2181 is No. 6 and reads as follows: 'When the verdict is contrary to law and evidence; but not more than two new trials shall be granted for these causes alone.' This was one of the grounds on which the trial court based its order for a new trial.

We have never discussed the significance of the combination of 'law and evidence' in this ground for a new trial, but there is no intimation in any case that the verdict must be contrary to both the law and the evidence in order to constitute a cause for a new trial. 'Law,' as used in the ground for a new trial now under consideration, applies only to cases in which it can be seen that the verdict of the jury was contrary to the law as laid down by the court, or, in other words, against instructions. 1 Hayne, New Trial and Appeal (Rev.Ed.) 480, § 99.

The verdict here was clearly not contrary to law, and we are concerned only with the question of whether the trial court could hold that it was contrary to the evidence.

The phrase 'contrary to the evidence' seems to us synonymous with 'against the weight of the evidence.' This was recognized in the early case of Tacoma v. Tacoma Light & Water Co., 16 Wash. 288, 47 P. 738, in which this court was of the opinion that the trial court had erred in not granting a new trial; but on rehearing we affirmed the trial court's refusal to grant a new trial. See Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 P. 55. And in Re Estate of Zaring, 77 Cal.App.2d 294, 175 P.2d 276, it was said that the term 'that the verdict is contrary to the evidence' is just another way of saying that the evidence was insufficient to justify the verdict. We have through the years used the phrases 'against the weight of the evidence' and 'insufficiency of the evidence' interchangeably in passing on the question of the right to a new trial. See Daigle v. Rudebeck, 154 Wash. 536, 282 P. 827; Leach v. Erickson, 161 Wash. 473, 297 P. 738; Dyal v. Fire Companies Adjustment Bureau, Inc., 23 Wash.2d 515, 161 P.2d 321; McClintock v. Allen, Wash., 191 P.2d 679.

It has been held that an order granting a new trial will not be disturbed on appeal except for an abuse of discretion, where the ground on which the new trial is granted is that 'the verdict is contrary to the evidence' ( Western Asphalt Co. v. Valle, 25 Wash.2d 428, 171 P.2d 159, 160) or 'the verdict is manifestly against the weight of the evidence' ( Rotting v. Cleman, 12 Wash. 615, 41 P. 907, 908; Clark v. Great Northern R. Co., 37 Wash. 537, 79 P. 1108, 2 Ann.Cas. 760; Sturtevant Co. v. Fidelity & Deposit Co., 92 Wash. 52, 158 P. 740, L.R.A.1917C, 630; Getty v. Hutton, 110 Wash. 429, 188 P. 497; Stickney v. Congdon, 140 Wash. 670, 250 P. 32; Owen v. United States Cas. Co., 165 Wash. 251, 4 P.2d 1099; Field v. North Coast Transp. Co., 168 Wash. 515, 12 P.2d 749; Eastwood v. City of Seattle, 169 Wash. 680, 14 P.2d 1116; Bowser v. City of Seattle, 186 Wash. 550, 59 P.2d 294; State v. Elliott, 6 Wash.2d 393, 107 P.2d 927; Stuckrath v. Schwarz, 10 Wash.2d 1, 115 P.2d 974) or 'insufficiency of the evidence to justify the verdict' (Rotting v. Cleman, supra; Welever v. Advance Shingle Co., 34 Wash. 331, 75 P. 863; Clark v. Great Northern R. Co., supra; Sturtevant Co. v. Fidelity & Deposit Co., supra; Funk v. Horrocks, 99 Wash. 397, 169 P. 805; McCabe v. Lindberg, 99 Wash. 430, 169 P. 841; Alberts v. Rasher, Kingman, Herrin, 128 Wash. 32, 221 P. 975; State v. Cornell, 152 Wash. 120, 277 P. 458; Leach v. Erickson, supra; Kimball v. Moore, 18 Wash.2d 643, 140 P.2d 498; Henry v. Larsen, 19 Wash.2d 690, 143 P.2d 841).

Where the evidence is in substantial conflict upon a controlling issue in a case, it cannot be said that there is any abuse of discretion by the trial court in granting a new trial upon any of these grounds. This proposition is supported by practically all of the cases heretofore cited.

And a much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying a new trial. McKay v. General Accident, Fire & Life Assur. Corporation, 163 Wash. 92, 299 P. 987; Ahrens v. Anderson, 186 Wash. 182, 57 P.2d 410.

Most of the citations supra are civil cases, as appeals from orders granting new trials in criminal cases are relatively few. The state had no right of appeal from such orders prior to 1925. See State v. Johnson, 24 Wash. 75, 63 P. 1124. Apparently the first time such an appeal was taken after the enactment of the statute authorizing it, Rem.Rev.Stat. § 2183-1, was in State v. Cornell, supra. In that case, the state appealed from an order granting a new trial for insufficiency of the evidence to justify the verdict. The court was there at some pains to make clear that, by analogy, the rules of the civil cases would be applied to appeals in criminal cases from orders granting new trials on the ground of the insufficiency of the evidence to justify the verdict. The court there said:

'* * * This court has repeatedly held that the granting of a new trial upon the grounds stated in the motion and order here in question rests in the discretion of the trial court, and that the exercise of such discretion will not be disturbed upon appeal, except there clearly appear an abuse of discretion on the part of the trial court in granting such motion. The following of our comparatively recent decisions, and many others therein noticed, are to that effect: [Citing cases.]

'* * * It seems plain to us that the discretion of the trial court in granting a new trial in this case is of the same nature and goes to the same extent as its discretion in granting a new trial in a civil action, and that by analogy the above cited of our decisions, to which many more might be added, are controlling in the disposition of this appeal.

'The order granting to Cornell a new trial is affirmed.'

We have found but twenty-eight cases in which this court has reversed orders granting new trials, and we will briefly refer to all of them.

In each of five cases, we held that the plaintiff had not established any cause of action and that, there being nothing to submit to a jury, the case should be dismissed. Dunkle v Spokane Falls & Northern Ry....