State v. Krueger
| Decision Date | 19 February 1929 |
| Docket Number | Cr. No. 19. |
| Citation | 57 N.D. 636,223 N.W. 583 |
| Parties | STATE v. KRUEGER. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Section 10994, Comp. Laws 1913, provided that an appeal might be taken from a judgment in a criminal action within one year after its rendition. Subsequently section 10920, Comp. Laws 1913, was enacted, providing that a motion for new trial must be made before the time for appeal elapsed. Thereafter chapter 217, Laws 1927, was enacted, amending section 10994 so as to provide that an appeal from a criminal judgment must be taken within three months after its rendition. Held, for reasons stated in the opinion, that a motion for new trial must be made within the time fixed for the taking of an appeal by chapter 217.
Appeal from District Court, McLean County; Fred Jansonius, Judge.
William Krueger was convicted of rape, and he appeals. Affirmed.
H. L. Halvorson, of Minot, and J. E. Nelson, of Garrison, for appellant.
R. L. Fraser, State's Atty., of Washburn (E. R. Sinkler, of Minot, of counsel), for the State.
The defendant was convicted of the crime of rape on July 14, 1927. Thereafter, and on February 14, 1928, he moved the court for a new trial on the ground of newly discovered evidence. This motion was denied on February 21, 1928; the court holding that it had no jurisdiction to hear and grant said motion, for the reason that the period within which an appeal from the judgment might be taken had expired prior to the time when said motion for new trial was made. From the order entered accordingly, the defendant perfected the instant appeal.
Section 109, Constitution of North Dakota, provides: “Writs of error and appeals may be allowed from the decisions of the district courts to the supreme court under such regulations as may be prescribed by law.”
Pursuant to this constitutional provision, the Legislature enacted, among others, the following statutes which are pertinent in this case:
Section 10989, C. L. 1913: “Either the defendant or the state may take an appeal as provided in this article.”
Section 10990, C. L. 1913: “An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him.”
Chapter 217, S. L. 1927, section 10994, C. L. 1913, chapter 125, S. L. 1925: “An appeal from a judgment may be taken within three months after its rendition and from an order within sixty days after it is made. * * *”
Section 10917, C. L. 1913: “When a verdict has been rendered against the defendant, the court in which the trial was had may, upon his application, grant a new trial in the following cases only [setting forth seven grounds for new trials].”
In the instant case the judgment of conviction was rendered on July 14, 1927. The period within which an appeal might be taken expired three months from that date under chapter 217, supra. The motion for a new trial was made on February 14, 1928, four months after the expiration of the time within which an appeal might have been taken. The defendant contends that, notwithstanding the limitation of three months imposed by chapter 217, upon the time within which he might appeal from the judgment, he had the right to move for a new trial on the ground of newly discovered evidence at any time within one year after July 14, 1927, the date of the rendition of the judgment against him. His theory in this behalf is that, when section 10920, supra, was enacted as section 8274, Revised Codes of 1895, section 10994, supra, providing that an appeal from a criminal judgment might be taken within one year after its rendition, was already in existence as section 7504, Compiled Laws, Dakota Territory, 1887, and incorporated thence into the statutes of the state; that section 10920 was thus originally enacted in the light of the provisions of section 10994. And so he argues the Legislature must have contemplated that a motion for new trial on the ground of newly discovered evidence might be made within one year from the date of rendition of judgment; that, by the amendments embodied in chapter 125, S. L. 1925, and chapter 217, S. L. 1927, the Legislature did not intend to, and in fact did not, affect section 10920, and, as a consequence, the motion for a new trial on any of the grounds mentioned in section 10917 may be made at any time within one year after the rendition of judgment.
It seems to us that there is no basis for the defendant's contention. The Legislature was acting within its powers under section 109 of the Constitution when it enacted chapter 217, supra, amending the time within which criminal appeals might be taken. See Stimson v. Stimson, 30 N. D. 78, 152 N. W. 132;McClain v. Williams, 10 S. D. 332, 73 N....
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State v. McClelland
...expires the court is without authority to entertain or grant such a motion. State v. Hagen, supra; State v. Gibson, supra; State v. Krueger, 57 N.D. 636, 223 N.W. 583. In the later case the defendant who was convicted of the crime of rape moved for a new trial on the ground of newly discove......
- State v. Krueger