State v. Evans

CourtSupreme Court of Oregon
Citation98 Or. 214,193 P. 927
PartiesSTATE v. EVANS.
Decision Date14 December 1920

Department 1.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

On petition for rehearing. Former opinion adhered to and petition denied.

For former opinion, see 192 P. 1062.

Gus Newbury, of Medford, for appellant.

I. H Van Winkle, Atty. Gen., and G. M. Roberts, Dist. Atty., of Medford, for the State.

HARRIS J.

The state has petitioned for a rehearing. It is contended that an order denying a motion for a new trial is not appealable cannot be assigned as error, and cannot be reviewed by this court; and in support of this contention the state cites State v. Pender, 72 Or. 94, 108, 142 P. 615, and State v. Frasier, 94 Or. 90, 107, 180 P 521, 184 P. 848.

An order denying a motion for a new trial is, of course, not appealable; for, if reviewable at all, it can only be reviewed by an appeal from the judgment against which the motion was directed. The order denying the motion is reached by appealing from the judgment rendered in the case.

The Code expressly recognizes the right of a disappointed litigant to ask for a new trial, if for any of the reasons specifically enumerated by the statute a substantial right of such litigant has been materially affected; and, among the several reasons, we find the following:

"Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial." Section 174, subd. 4, Or. L.

Subdivision 6 of this section authorizes the court to grant a new trial because of an "insufficiency of the evidence to justify the verdict or other decision, or that it is against law."

Section 174, Or. L., has been brought to the attention of this court many times. The following constitute a considerable number though not all, of the many precedents in which section 174 has been noticed: Bowen v. State, 1 Or. 271; State v. Fitzhugh, 2 Or. 227, 236; State v. Wilson, 6 Or. 429; Hallock v. Portland, 8 Or. 29, 30; State v. McDonald, 8 Or. 114, 118; State v. Becker, 12 Or. 318, 319, 7 P. 329; Kearney v. Snodgrass, 12 Or. 311, 7 P. 309; State v. Roberts, 15 Or. 187, 198, 13 P. 896; State v. Clements, 15 Or. 237, 243, 14 P. 410; Beckman v. Hamlin, 23 Or. 313, 319, 31 P. 707; State v. Foot You, 24 Or. 61, 70, 73, 32 P. 1031, 33 P. 537; Elder v. Rourke, 27 Or. 363, 367, 41 P. 6; State v. Childers, 32 Or. 119, 128, 49 P. 801; State v. Gardner, 33 Or. 149, 152, 54 P. 809; McCormick Harvest Machine Co. v. Hovey, 36 Or. 259, 260, 59 P. 189; State v. Crockett, 39 Or. 76, 81, 65 P. 447; Crossen v. Oliver, 41 Or. 505, 508, 69 P. 308; Ruckman v. Ormond, 42 Or. 209, 212, 70 P. 707; First Nat. Bk. v. McCullough, 50 Or. 508, 515, 93 P. 366, 77 L. R. A. (N. S.) 1105, 126 Am. St. Rep. 758; Manning v. Portland Ship Building Co., 52 Or. 101, 103, 96 P. 545; Fassett v. Boswell, 59 Or. 288, 290, 117 P. 302; Stark v. Epler, 59 Or. 262, 268, 117 P. 276; Abercrombie v. Heckard, 68 Or. 103, 104, 136 P. 875; In re Sneddon, 74 Or. 586, 591, 144 P. 676; White v. Geinger, 70 Or. 81, 82, 139 P. 572; Wallace v. P. R. L. & P. Co., 88 Or. 219, 226, 159 P. 974, 170 P. 263.

Although there may have been an occasional discordant note among the many reported opinions of the court, yet it must now be accepted as an established rule that the denial of a motion for a new trial cannot be assigned as error, and will not be reviewed on appeal where the motion is based upon an alleged insufficiency of the evidence. This established rule is simply the natural result of conditions. The fact of the insufficiency of the evidence in any given case can always be known before the cause is submitted to the jury; and hence the defendant is always afforded an opportunity to question the sufficiency of the evidence, for he may move for a nonsuit at the close of the plaintiff's case in chief, or move for a directed verdict when both parties have rested, and in that manner preserve the record, so that upon appeal the question of the sufficiency of the evidence may be reviewed.

Quite a different situation is created, however, where the motion for a new trial is based upon newly discovered evidence. In such a case the trial has been completed and the verdict of the jury has been returned; and the very purpose of allowing the motion for a new trial is to afford a remedy for a fact situation which becomes known after verdict, and could not with reasonable diligence have been known before the completion of the trial. The basic difference between the two classes of cases is discussed and recognized in State v. Hill, 39 Or. 90, 96, 65 P. 518, 520, for there this court said:

"While the rule is well settled in this state that the action of the trial court on a motion for a new trial on account of any matter within the knowledge of a party prior to the submission of the cause to the jury is not reviewable on appeal, and therefore cannot be assigned as error [citing cases], yet when anything occurs after the cause has been submitted which tends to subvert justice, or shows that a fair trial has not been had, and which by the exercise of reasonable diligence on the part of the defeated party could not have been ascertained or prevented, his affidavit and motion for a new trial, predicated upon such matters, presents a question which the court should weigh and decide with care, and whenever its judgment thereon is manifestly wrong it will be reviewed on appeal."

The controlling principle which is announced in State v. Hill, 39 Or. 90, 96, 65 P. 518, is also recognized and approved in Ruckman v. Ormond, 42 Or. 209, 212, 70 P. 707; Goodeve v. Thompson, 68 Or. 411, 417, 136 P. 670, 137 P. 744; Stern v. Volz, 52 Or. 597, 598, 98 P. 148; Colgan v. Farmers' & Mechanics' Bank, 59 Or. 469, 475, 106 P. 1134, 114 P. 460, 117 P. 807.

See, also, Tucker v. Flouring Mills Co., 13 Or. 28, 34, 7 P. 53; Mitchell & Lewis Co. v. Downing, 23 Or. 448, 454, 32 P. 394; Barclay v. Ore. Wash. Co., 75 Or. 559, 561, 147 P. 541; State v. Mims, 36 Or. 315, 327, 61 P. 888; State v. Magers, 36 Or. 38, 53, 58 P. 892; State v. Smith, 43 Or. 109, 118, 71 P. 973; Territory of Oregon v. Latshaw, 1 Or. 146; Lander v. Miles, 3 Or. 40, 43; State v. Ausplund, 86 Or. 121, 139, 167 P. 1019; Portland & O. C. Ry. Co. v. Sanders, 86 Or. 62, 77, 167 P. 564; Crossen v. Oliver, 41 Or. 505, 508, 69 P. 308; Fassett v. Boswell, 59 Or. 288, 290, 117 P. 302; State v. Parr, 54 Or. 316, 324, 103 P. 434.

Frankness compels the admission that complete harmony does not run throughout all the decisions dealing with section 174, Or L., for there are many precedents which contain statements which,...

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17 cases
  • State v. Long
    • United States
    • Oregon Supreme Court
    • 21 Mayo 1952
    ...as to the sufficiency of the evidence. State v. Leonard, 73 Or. 451, 144 P. 113, 144 P. 681; State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927; State v. Sing, 114 Or. 267, 229 P. This being a capital case, the court has gone through the evidence in minute detail, notwithstanding the defec......
  • State v. Classen
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    • 15 Noviembre 1977
    ...sort of testimony inadmissible as hearsay. State v. Houghton, 43 Or. 125, 71 P. 982 (1903); State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927 (1920); State v. Lanegan, 192 Or. 691, 236 P.2d 438 (1951). This issue is not presented here (State v. Nunes, 251 Or. 49, 444 P.2d 542 (1968)), but......
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    • U.S. Court of Appeals — Sixth Circuit
    • 10 Abril 1961
    ...106; Fletcher v. People, 117 Ill. 184, 7 N.E. 80; Beland v. State, 86 Tex.Cr.R. 285, 217 S.W. 147; State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927; Wisniewski v. Wysocki, Sup., 36 N.Y.S.2d 712; Johnson v. Commonwealth, 126 Va. 770, 101 S.E. 341; Meinberg v. Jordan, 29 Cal.App. 760, 157 ......
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    • 5 Noviembre 1958
    ...ever be availed of when appeal is taken from a conviction on a plea of guilty, has no application. State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927, points out the distinction between an appealable order and an order which, though not appealable, may, nevertheless, be reviewed. There, th......
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