State v. Hayes
| Decision Date | 14 February 1918 |
| Docket Number | 4195. |
| Parties | STATE v. HAYES. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Stanley County; Levi McGee, Judge.
John Hayes was convicted of forgery in the second degree, and from an order granting motion in arrest of judgment and discharging defendant, the State appealed (37 S.D. 530, 159 N.W. 108), and the order was vacated with directions whereupon the defendant moved for a new trial, from the granting of which the State appeals. Affirmed.
Clarence C. Caldwell, Atty. Gen., and T. F. Auldridge, Asst. Atty Gen., for the State.
A. K. Gardner, of Huron, for respondent.
One John Hayes was convicted in the circuit court of Stanley county upon an information under section 587, Penal Code, charging the crime of forgery in the second degree. A motion in arrest of judgment was sustained by the trial court. Upon appeal to this court the order of the trial court was reversed. That decision is reported in 37 S.D. 530, 159 N.W. 108. After the filing of the remittitur and before any judgment had been entered, appellant filed a motion for a new trial based upon some 40 specifications of error, 30 of which relate to rulings upon evidence; 6 to specifications of alleged misconduct of counsel for the prosecution in making improper statements in his argument to the jury prejudicial to the accused; one alleges error in the refusal of the trial court to advise the jury to return a verdict of not guilty, one specifies insufficiency of the evidence to sustain the verdict; and two others, misconduct of the jury in taking to the jury room certain exhibits received in evidence to which were attached depositions taken in a civil case involving the same exhibits, which depositions had not been offered or received in evidence upon the trial of the criminal case. A new trial was granted by the trial court, and the state appeals upon four assignments of error: (1) That the defendant is barred from making the motion for a new trial for the reason that he first moved in arrest of judgment, and thereby waived his right to move for a new trial; (2) that the alleged errors of the trial court in its rulings upon the admission and rejection of evidence were immaterial; (3) that the evidence is sufficient to sustain the verdict; (4) that the depositions taken to the jury room by the jury did not influence them in their deliberations upon the evidence, or in arriving at a verdict, and such act was not prejudicial to the defendant.
The argument of the learned Attorney General is devoted chiefly to the contention that a motion in arrest of judgment is a waiver of the right to move for a new trial. In support thereof, he cites decisions from the Supreme Courts of Indiana and Tennessee and earlier decisions from Illinois and Texas. A review of these decisions would serve no useful purpose, and we shall not attempt it. Appellant's argument is grounded largely upon the assumption that an order arresting judgment is the same in effect as an order granting a new trial. This view is clearly erroneous. Under section 429, Code Criminal Procedure, the granting of a new trial places the parties in the same position as if no trial had been had, and requires that the testimony be produced anew. Sections 433 and 434, Code Criminal Procedure, declare the effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found or the information was filed; that an arrest of judgment is not a bar to another prosecution; and that the court may order the accused recommitted to answer to a new indictment or information where there is reasonable ground to believe him guilty and a new indictment or information can be framed upon which he might be convicted.
A decision upon a motion in arrest of judgment, therefore, does not become res judicata upon, nor is it a waiver of, any question which may be properly presented upon a motion for a new trial, except those specified in section 272, Code Criminal Procedure, as grounds of demurrer to the indictment or information. It follows that the order in which the two motions are presented is immaterial, although we are of the view that the determination of matters specified in section 272 upon a motion in arrest of judgment would render the same questions res judicata upon a motion for a new trial subsequently made. The decision in Miller v. State, 139 Wis. 57, 119 N.W. 850, under Code provisions similar to our own, we think is a correct interpretation of the Code of Criminal Procedure and announces the rule which should be adopted in this jurisdiction.
We deem it unnecessary, with one exception, to consider the various rulings upon evidence specified as erroneous upon the motion for a new trial, further than to direct special attention to the language of this court in State v. Hayes, supra, decided since the trial at which these alleged erroneous rulings were made, which we think furnishes a sufficient guide to the trial court in...
To continue reading
Request your trial