State v. Nicks, 9723
| Decision Date | 12 June 1957 |
| Docket Number | No. 9723,9723 |
| Citation | 312 P.2d 519,131 Mont. 567 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. William NICKS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Hansen, Jones & Culver, Baker, Clayton Jones, Jr., Miles City, for appellant.
Al Hansen, Baker, and Clayton Jones, Miles City, argued orally for appellant.
Forrest H. Anderson, Atty. Gen., Robert J. Emmons, Asst. Atty. Gen., Gene Huntley, County Atty., Baker, for respondent.
Robert J. Emmons, Asst. Atty. Gen., and Gene Huntley, County Atty., Baker, argued orally for respondent.
Appeal from judgment of conviction of the crime of committing a lewd and lascivious act upon the body of a female child of the age of ten years.
This cause was set for hearing by this court for April 23, 1957. On April 22, 1957, the defendant herein filed in this court a notice and motion for new trial based upon new evidence discovered material to the defendant which he could not with reasonable diligence have discovered and produced at the trial. The motion was made and based upon affidavits of a witness who testified at the trial, and one of the attorneys for the defendant, the minutes of the court including the stenographic record of the trial, and all of the records and proceedings in the case. From the affidavit of counsel it appears that the newly discovered evidence was not known to him until on or about the 15th day of April, 1957.
The State on April 23, 1957, filed herein a motion to strike the motion for new trial.
On April 23, 1957, the defendant filed herein a motion for an order granting leave to the district court to accept and entertain a motion for a new trial, and to stay further proceedings herein pending such motion based upon the grounds as set forth in the motion for new trial heretofore referred to.
The matter was argued and taken under advisement by this court and counsel were granted additional time in which to file briefs of authorities in support of their respective positions.
R.C.M.1947, § 94-7603, provides:
'When a verdict has been rendered against the defendant, the court may, upon his application, grant a new trial in the following cases only: * * *
.
R.C.M.1947, § 94-7604, provides:
'The application for a new trial must be made upon written notice of motion, and, if based upon any of the grounds mentioned in the subdivisions 2, 3, 4, and 7, of the preceding section, such written notice of motion must be filed within thirty days after the discovery of the facts upon which the party relies in support of his motion; in all other cases notice of motion must be filed within ten days after the rendition of the verdict.'
In State v. Hughes, 78 Mont. 87, 89, 252 P. 320, 331, in considering a supplemental motion for a new trial, based upon newly discovered evidence which was filed within thirty days after discovery of the alleged newly discovered evidence, this court held that the supplemental motion was timely when, by the affidavit, it was made to appear that such supplemental motion had been filed within thirty days after the discovery of the facts. It was further stated: 'There is no other limitation as to time prescribed, and quite properly so, for were it otherwise, grave injustice might be done in some instances.'
The notice of motion and motion filed herein by the defendant comply with the provisions of our statutes and their interpretation insofar as being timely.
The defendant contends that by reason of the lack of jurisdiction in the district court he is unable to file his notice and motion for new trial therein, and we agree since after an appeal has been perfected to this court the district court loses jurisdiction of the case (Benolken v. Miracle, 128 Mont. 262, 273 P.2d 667, and cases cited therein; State v. Groom, 89 Mont. 447, 300 P. 226; Finlen v. Heinze, 27 Mont. 107, 69 P. 829, 70 P. 517), except that if a motion for new trial is then pending the...
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State v. Fuentes
...of the issues presented in the trial court, this Court has the power to review in the regular course of events. See State v. Nicks, 131 Mont. 567, 312 P.2d 519; State v. Petrolia, 37 N.J.Super. 326, 117 A.2d 281, and note in 27 A.L.R. 1091. See, also, Angle v. United States, 4 Cir., 162 F. ......
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State v. Noriega
...rel. Thompson v. Babcock, 145 Mont. 592, 403 P.2d 605 (1965); Weisberg v. Koprowski, 17 N.J. 362, 111 A.2d 481 (1955); State v. Nicks, 131 Mont. 567, 312 P.2d 519 (1957); Ketola v. St. Paul City Railway Company, 245 Minn. 583, 72 N.W.2d 370 In the federal court system, the trial court is pe......
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State v. Mooney
...Thompson v. Babcock, 145 Mont. 592, 403 P.2d 605 (1965); Weisberg v. Koprowski, 17 N.J. 362, 111 A.2d 481 (1955); State v. Nicks, 131 Mont. 567, 312 P.2d 519, 521 (1957); Ketola v. St. Paul City Railway Company, 245 Minn. 583, 72 N.W.2d 370 (1955), and State v. Fuentes, 66 N.M. 52, 342 P.2d......
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State v. Gollehon
...simply refused to entertain the defendant's motion on that basis. We needlessly went further, however. In dicta, citing State v. Nicks (1957), 131 Mont. 567, 312 P.2d 519, we stated [i]f the grounds for seeking a new trial do not arise until after expiration of the 30 day period or until af......