State v. McClelland

Decision Date24 August 1943
PartiesSTATE v. McCLELLAND.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Morton County; G. Grimson, Special Judge.

W. F. McClelland was convicted of rape in the first degree, and he appeals.

Judgment affirmed.

Syllabus by the Court.

1. The right to a new trial is purely statutory and a trial court has no jurisdiction to entertain or grant a motion for a new trial noticed for hearing after the statutory time for making a motion for new trial has expired.

2. A motion for a new trial and an appeal from a judgment are separate remedies and the taking of an appeal does not extend the time within which a motion for a new trial must be made.

3. The right of appeal is not conferred by the Constitution. An appeal to the Supreme Court may be had only under such regulations as may be prescribed by law. § 109, N.D.Const.

4. An appeal from a judgment only, brings to the Supreme Court for review errors of law committed by the trial court and appearing in the record of the action which have been preserved and presented in the manner prescribed by statute.

5. Sufficiency of the evidence to sustain the verdict, not challenged either by motion for a new trial or for an advised verdict, cannot be considered on an appeal from the judgment alone.

6. In order to secure a review of the propriety of instructions to the jury or the refusal of requested instructions, exceptions must be taken in the manner prescribed by sections 10824 and 10825, Comp.Laws N.D.1913.

7. Where a witness answered an ambiguous question on cross-examination it was not error to permit her to explain on redirect examination what she understood the question to be and to state what she meant by her answer.

On Rehearing.

8. For reasons stated in the opinion, it is held that the admission of certain testimony on the redirect examination of the complaining witness did not constitute prejudicial error.

CHRISTIANSON and BURKE, JJ., dissenting on rehearing.

Scott Cameron, of Bismarck, and John F. Sullivan, of Mandan, for appellant.

Alvin C. Strutz, Atty. Gen., and Wm. R. Pearce, Asst. Atty. Gen., for respondent.

MORRIS, Chief Justice.

This is an appeal from a judgment and sentence entered pursuant to the verdict of a jury finding the defendant guilty of rape in the first degree. The verdict was returned February 27, 1942. Upon petition of the defendant the trial court deferred passing of sentence until March 24, 1942. On that date the court pronounced judgment against the defendant and passed sentence upon him. Written judgment was signed by the court and filed with the clerk on that day. At the request of counsel for defendant the court ordered the time within which a motion for a new trial might be made extended for a period of 60 days.

On May 23, 1942, the court made an order, pursuant to the application of counsel for the defendant and with the consent of counsel for the state, extending the time for making a motion for a new trial and for filing notice of newly discovered evidence and serving affidavits pertaining thereto to the 8th day of June, 1942.

On May 27, 1942, the court upon application of defendant's counsel and after a telephone conference with the Attorney General who had charge of the prosecution, made another order extending the time for making a motion for a new trial to the 15th day of July, 1942.

Certain affidavits in connection with an application for a new trial on the ground of newly discovered evidence were filed with the clerk of the district court on July 6, 1942. The motion for a new trial based upon these affidavits was noticed for hearing on July 14, 1942. The affidavits were sworn to at various times from March 19 to May 23rd, 1942.

On July 6, 1942, the defendant filed in the office of the clerk of the district court a notice of motion for a new trial, motion, specifications of error and affidavits in support of the motion. On July 9, 1942, these instruments were served on counsel for the state. The notice fixed the time for hearing of the motion for July 14, 1942 at 10 o'clock a.m. at the courthouse in Mandan. At that time the defendant appeared in person and by counsel and the state was represented by the Attorney General and his assistant.

Counsel for the state objected to the motion for new trial on the ground that the court had no jurisdiction to consider the same because the motion was made too late for various reasons that were set out at length in written objections. The court denied the motion on the following grounds:

“1. That the said motion was made too late and after the statutory time for making such motion had expired and elapsed.

“2. That on the merits no sufficient grounds have been shown by the defendant to grant a new trial of this case.”

Defendant's notice of appeal from the order denying the motion for a new trial was served on counsel for the state on October 7, 1942, and filed in the office of the clerk of court on the same day. It was filed in the Supreme Court on October 10, 1942. A notice of appeal from the judgment and sentence was served on counsel for the state on March 24, 1942, and filed in the Supreme Court, June 17, 1942.

The motion for new trial was made upon various grounds consisting of insufficiency of the evidence, newly discovered evidence and errors of law occurring at the trial which are pointed out in specifications covering the admission of testimony and failure to give a requested instruction. Affidavits and counter-affidavits in connection with the newly discovered evidence are presented in the record.

The state contends upon this appeal as it did before the trial court that the motion for a new trial came too late and that the trial court was wholly without jurisdiction to consider it.

Section 10917, Comp.Laws N.D.1913, states: “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:”

The first four paragraphs have no application in this case.

“5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, or has done or allowed any act in the action prejudicial to the substantial rights of the defendant.

“6. When the verdict is contrary to law or clearly against the evidence.

“7. When new evidence is discovered material to the defense, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.”

Section 10920, Comp.Laws N.D.1913, provides: “The application for a new trial, except in case of a sentence of death, must be made before the time for an appeal has elapsed.”

In a criminal action, an appeal may be taken from a judgment within three months after its rendition and from an order within 60 days after it is made. Chapter 217, Session Laws N.D.1927. The judgment in this case was entered March 24, 1942. The time for appeal extended for 3 months from that date. The time for making an application for a new trial was limited to a period of 3 months from that date. An appeal from the judgment was taken by serving and filing a notice of appeal within proper time. The motion for a new trial was not brought on for hearing until in July. This court has passed on the question under consideration in several cases. In State v. Hagen, 54 N.D. 136, 208 N.W. 947, it is held that a motion for a new trial and an appeal from a judgment are separate remedies and that the taking of an appeal does not extend the time within which a motion for new trial must be made. This rule was followed in State v. Gibson, 69 N.D. 70, 284 N.W. 209. Thus, it is clear that the appeal from the judgment did not extend the time for making a motion for a new trial beyond 3 months from the rendition of the judgment.

Section 10920 is mandatory in its language to the effect that an application for a new trial must be made before the time for an appeal has elapsed. The right to a new trial can only be conferred by statute. It can be had only upon grounds which the law grants and upon application made within the time specified. When that time 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 discovered evidence. The motion was made after the time for appeal had expired. The trial court held that it had no jurisdiction to hear and grant the motion. This court affirmed that decision.

The trial court had no jurisdiction to entertain or grant the defendant's motion. The situation is therefore the same as if no motion for a new trial had been made. The Supreme Court of Missouri had before it a similar situation in State v. Brown, 339 Mo. 1014, 98 S.W.2d 777, 780, wherein it is said:

“The Missouri decisions, above referred to, are unanimous in holding that a motion for new trial, filed after the statutory period for its filing had expired, is to be treated as a nullity. If so, the situation is the same as if no motion had been filed. The conclusion then is inescapable that the state cannot by stipulation have this court consider a motion for new trial to have been filed, when in fact none was filed. If the state could so stipulate and have this court review the rulings of the trial court, then the matter of filing motions for new trial would no longer be controlled by our statute. The statute could then be set aside by mutual consent to suit the convenience of the parties. We must not lose sight of the fact that we are all governed by the same law. That law is just as binding upon this court as it is upon the appellant in this case.”

In Webster v. State, 209 Ind. 274, 198 N. E. 781, the trial court overruled defendant's motion for a new trial that was made after...

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