State v. Jager

• Decision Date: 23 July 1958
• Docket Number: Cr. N
• Citation: 91 N.W.2d 337
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Joseph E. JAGER and James Forrest Stewart, Defendants and Appellants. o. 284.
• Court: North Dakota Supreme Court

Page 337

91 N.W.2d 337

STATE of North Dakota, Plaintiff and Respondent, v. Joseph E. JAGER and James Forrest Stewart, Defendants and Appellants.

Cr. No. 284.

Supreme Court of North Dakota.

July 23, 1958.

Rehearing Denied Aug. 16, 1958.

Syllabus by the Court

1. An action either civil or criminal is pending until a final determination upon appeal or until the time of appeal has passed. State v. Prince, N.D., 66 N.W.2d 796.

2. When an appeal is taken the Supreme Court becomes invested with jurisdiction. It retains such jurisdiction until the cause is disposed of and the remittitur filed in the court below.

3. A motion for a new trial on the grounds of newly discovered evidence is addressed to the trial court's judicial discretion. The trial court's decision on such motion will not be set aside unless an abuse of discretion is shown.

4. Where the new evidence alleged as grounds for a new trial is of such a nature that it is not likely to be believed by a jury, or to change the results of the former trial, the trial court's decision denying the motion is not an abuse of judicial discretion.

Duffy & Haugland, Devils Lake, for appellants.

Ralph J. Erickstad, Sp. Asst. State's Atty., Davis Lake, and Philip R. Bangs, Sp. Asst. State's Atty., Grand Forks, for respondent.

GRIMSON, Chief Justice.

This matter comes before the court on a motion for a new trial on the grounds of newly discovered evidence. The defendants were originally tried on a charge of grand larceny. On Feb. 26, 1954, both defendants were found guilty. A motion for a new trial was immediately made and heard on March 20, 1954, denied on April 26, 1954. No appeal was taken. A second motion for a new trial was made on Dec. 26, 1955, on the grounds of newly discovered evidence. This motion was denied on Feb. 26, 1956. Appeals both from the judgment of conviction and from the denial of this last motion for a new trial were taken and were decided by this court on July 26, 1957, and both appeals denied. N.D., 85 N.W.2d 240. A petition for a rehearing was denied on Oct. 14, 1957.

A petition to withhold the remittitur and a petition to amend statement of the case were filed on November 15, 1957. On that day a minute order was entered withholding the remittitur until Dec. 16, 1957. On Dec. 14, 1957, a motion to amend the statement of the case was denied. No action, however, was taken to send down the remittitur.

This motion for a new trial was made in District Court, Jan. 15, 1958, on the ground of new evidence discovered on Dec. 24, 1957. A motion for a new trial is an independent remedy in both criminal and civil procedure. State v. Prince, N.D., 66 N.W.2d 796. That motion v. Prince, N.D., on January 20, 1958. A further application was made by the defendant on January 18, 1958, to withhold the remittitur. That application was denied on January 30, 1958 and the clerk was directed to transmit the remittitur forthwith which was done on January 31, 1958. The District Court denied the motion for a new trial on February 25, 1958.

This appeal is from the order denying that motion. The first question raised is whether the district court had jurisdiction to act upon the motion for a new trial.

It is contended on behalf of the defendants that Section 29-2406, NDRC 1943, which provided that motions for a new trial in criminal cases, excepting in case of a sentence of death, must be made before the time for appeal has elapsed, was repealed by Chapter 207, S.L.1951 and no substitute provided. Defendants claim therefore that there is no limitation of time for making a motion for a new trial in a criminal case except a limitation in Section 29-2404, NDRC 1943, which provides that it must be brought within 30 days after the discovery of facts upon which the party relies in support of his application, which was done in this case, and that, therefore, the district court had jurisdiction to act on this motion.

On behalf of the state, however, it is claimed that since the supreme court's original decision was made on July 26, 1957, and two motions for a new trial had been denied and the defendants had been granted an extension of time only to Dec. 16, 1957, that final determination of the case had been made. That, therefore, the district court did not have jurisdiction to act upon this last motion for a new trial.

In State v. Prince, N.D., 66 N.W.2d 796, 799, this court said: 'A civil action is deemed pending from the time of its commencement until its final determination upon appeal or until the time of appeal is passed. Section 28-0510, NDRC 1943. By analogy it would seem that a criminal action is also pending until its final determination upon appeal or until the time for appeal has passed' and we held that 'An action, either civil or criminal, is deemed pending until the final determination of an appeal or until the time for an appeal has passed.'

The question then is when the determination of the appellate court upon appeal is final.

In State v. Cook, 53 N.D. 756, 208 N.W. 556, this court held: '[The Supreme Court] does not lose jurisdiction of a cause so as to be without power to grant a rehearing therein, until after the remittitur has gone down.'

In State v. Sund, 25 N.D. 59, 140 N.W. 716, this court held that 'When a remittitur has gone down from this court and has been filed in the trial court, under all ordinary circumstances this court has lost jurisdiction of the case. * * *'

In Patterson Land Co. v. Lynn, 36 N.D. 341, 162 N.W. 702, we held: 'When the Supreme Court becomes invested with jurisdiction of a cause brought there on appeal, it retains such jurisdiction until the cause has been disposed of and the remittitur sent down to the court below; * * *'.

It is clear since Chapter 207, S.L.1951, there is no limitation by statute except Section 29-2404, NDRC 1943, on the time when a motion in a criminal case can be made for a new trial on newly discovered evidence. Under State v. Prince, supra, a criminal action is pending until its final determination upon appeal. Under the above authorities our jurisdiction does not cease until the remittitur has gone down.

In this case the jurisdiction of the case remained in the Supreme Court because the remittitur had not been sent down when the last motion for a new trial was made. The time when it was made rather than the time when it was decided controls. Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707. The motion was made on Jan. 15, 1958, while we still held the remittitur.

We have, therefore, come to the conclusion that the District Court had jurisdiction to pass upon the motion for a new trial and that we can consider the appeal on the merits.

The next question is whether the facts alleged in the application are of sufficient merit to warrant a new trial.

The showing upon which this motion is based is the affidavit of one, Robert W. Wheeler, stating that he and another man called, 'Sonny,' committed the crime of which defendants were convicted. This affidavit was made in Los Angeles where the father of the defendant Stewart was spending the Christmas Holidays. The father notified the defendants' attorneys thereof. The affidavit of Mr. Wheeler was verified before a California Notary Public on Dec. 20, 1957, and afterwards amplified by an oral examination by a California lawyer, taken down stenotypically and transcribed.

The substance of Robert Wheeler's affidavit and statement is that about the middle of May 1953 he want to the Stewart Detective Agency in Los Angeles to ask defendant, Stewart, for a job. Mrs. Stewart told him that Stewart was in Grand Forks, North Dakota, working on a case, together with Joe Jager, her brother. He claims he borrowed a car from a friend from Wyoming by the name of Skinner, got some clothes, a supply of liquor and some maps and started for North Dakota. There is no description of the highways he took. He drank his whiskey, slept in his car and reached Grand Forks in 3 1/2 days. Mrs. Stewart had told him to inquire at the Great Northern depot because Stewart's telegrams were sent there. Stewart was said to be in Minot. That afternoon he drove to Minot to look for Stewart. He slept in his car on the outskirts of town, finished his whiskey and started early the next morning looking at every new Ford, the kind Stewart was supposed to be driving. Then when he got hungry he started for a cafe but wound up in a bar. There he got to drinking and talking with a friendly fellow who gave his name as 'Sonny.' They visited for a couple of hours. Sonny told him he knew Joe Jager from Devils Lake, Wheeler told him he didn't have enough money to get back to LA unless he could find Stewart and borrow some money from him. Sonny said he was almost broke too. They again drove around town but found neither Stewart nor Jager. They bought some more whiskey jointly and talked about their lack of finances. Sonny told him he knew where there was a small safe in a house in Devils Lake that would be real easy to get, if one man stood outside watching while the other went in to get the safe. Both were drunk. Sonny said 'he'd have to call the people who owned the safe to make out like one of their relatives was sick.' They pulled off the road at a farm house to use the phone. Sonny asked for a pencil and paper and Wheeler gave him a pencil and a map out of the car. Sonny put on dark glasses for fear he would be recognized. He returned saying he had not phoned. They drove a little while and went to a gas station. While the woman filled the car Sonny went in and used the telephone. He returned saying everything was all set. They drove into a small residential area in Devils Lake where they changed cars because Wheeler's car had Wyoming plates. He does not say whose car they borrowed. They drove up to the house containing the safe. He knocked on the back door and a little boy came out. They left but returned with Sonny going to the front door of the house to engage the boy in conversation while...