State v. Northrup
| Decision Date | 23 December 1893 |
| Parties | STATE v. NORTHRUP. |
| Court | Montana Supreme Court |
Appeal from district court, Park county; FRANK Henry, Judge.
Charles Northrup was convicted of murder in the second degree, and from an order granting him a new trial the state appeals. Affirmed.
Henri J. Haskell, Atty. Gen., H. J. Miller, and Allen R. Joy, for the State.
The state may appeal from an order granting defendant a new trial. State v. West, (La.) 12 So. 7; People v Hawes, (Cal.) 33 P. 791; Johnson v. State (Ark.) 23 S.W. 7; Lovett v. State, (Fla.) 11 So. 550; Vaughn v. State, (Ga.) 16 S.E. 64; Byrd v Com., (Va.) Id. 727; Willingham v. State, (Tex. Cr. App.) 22 S.W. 925; Wilkins v. State, (Ala.) 13 So. 312; State v. Thompson, (La.) Id. 392; Jackson v. State, (Ga.) 15 S.E. 677; Norris v. State, (Tex. Cr. App.) 22 S.W. 592; Lewis v. State, Id. 687; Gibbs v. State, (Tex. Or.App.) 20 S.W. 919; Territory v. Johnson, 9 Mont. 28, 22 P. 346. People v. Gonzales, 71 Cal. 569, 12 P. 783; Springfield v. State, (Ala.) 11 So. 250; Scales v. State, Id. 121; State v. Parker, (Mo.) 17 S.W. 180; Pugh v. State, 2 Tex. App. 545; Polk v. State, (Tex. App.) 18 S.W. 466; State v. Doyle, (Mo.) 17 S.W. 751; State v. Sullivan, (Iowa,) 50 N.W. 572; Dillard v. State, (Tex. App.) 19 S.W. 895; Davis v. State, (Neb.) 47 N.W. 851; State v. Shreves, (Iowa,) Id. 899; State v. O'Brien, 81 Iowa, 88, 46 N.W. 752; State v. Stockwell, (Mo.) 16 S.W. 888; State v. Morrison, Id. 492; Maurer v. State, (Ind. Sup.) 29 N.E. 392; People v. Bruggy, 93 Cal. 476, 29 P. 26; State v. Elliot, (Ohio,) 26 Wkly. Law Bul. 116; Johnston v. State, (Fla.) 10 So. 686; State v. Jackson, (La.) Id. 600; People v. Donguli, 92 Cal. 607, 28 P. 782; Young v. State, (Ala.) 10 So. 913; State v. Blunt, (Mo.) 19 S.W. 650; Crist v. State. (Tex. App.) 17 S.W. 260; Halbert v. State, 3 Tex. App. 660; Stit v. State, (Ala.) 8 South. 669; Gibson v. State, Id. 98; Brown v. State, (Ala.) 3 South. 857; Territory v. McAndrews, 3 Mont. 166.
Campbell & Stark, for respondent.
The defendant and respondent in the court below moved the court to have the appeal dismissed. Motion was overruled, but, upon the petition of the defendant and respondent, a rehearing was ordered upon said motion. The third subdivision of section 396 of the third division of the Compiled Statutes of Montana, which relates to appeals by the territory in criminal cases upon questions of law reserved by the state is in contravention of the constitution of the United States and of the state of Montana, which provides that no person shall be twice placed in jeopardy for the same offense. Section 341, which carries into effect the provisions of chapter 15, would place the defendant twice in jeopardy, and is therefore unconstitutional and void, and it must all fall together. State v. Van Horton, 26 Iowa, 402; City of Olathe v. Adams, 15 Kan. 391; State v. Anderson, 3 Smedes & M. 751; State v. Hand, 6 Ark. 169; State v. Burris, 3 Tex. 118; People v. Webb, 38 Cal. 467; People v. Swift, 59 Mich. 529, 541, 26 N.W. 694; State v. Crosby, 17 Kan. 396; 1 Bish. Crim. Law, § 1026. There being no appeal allowed by common law, the statutory provisions for appeals in criminal cases by the territory should be strictly construed, and no appeal should be allowed to the state unless the same is expressly allowed by statute. U.S. v. Sanges, 144 U.S. 310, 12 S.Ct. 609. There can be no appeal by the territory until there is a judgment. Crim. Pr. Act, § 395. In the case of Territory v. Laun, 8 Mont. 322, 20 P. 652, the learned judge says that no appeal can be had until there is a judgment of acquittal. This may be dictum, but it seems to us it is the only construction which can be placed upon it, as section 395 does not provide for appeals from anything but judgments, and, no appeal being allowed by common law, no appeal can be had. In New York, under the Laws of 1852, providing that writs of error should be granted to review any judgment rendered in favor of any defendant upon any indictment for any criminal offense, except where such defendant had been acquitted by a jury, it was held that the court of appeals had not the power to review, by writ of error, an order of the supreme court granting the defendant a new trial, before any judgment had been entered. People v. Nestle, 19 N.Y. 583. The supreme court of Indiana have passed upon a section similar to ours, and from which we believe ours to have been taken, holding that there can be no appeal until a final judgment is entered in favor of the defendant. State v. Hamilton, 62 Ind. 409; State v. Spencer, 92 Ind. 115; Wingo v. State, 99 Ind/ 343; State v. Evansville, etc., R. Co., 107 Ind. 581, 583, 8 N.E. 619; Elliott, App. Proc. § 272. The supreme court of this state, in the cases of U.S. v. Smith, 2 Mont. 487, and Territory v. Rehberg, 6 Mont. 467, 13 P. 132, have decided that the defendant cannot appeal until final judgment has been entered; and the same construction must certainly apply to the state. Conceding, for the purpose of this argument, that an appeal may be taken by the territory before final judgment, it can only be taken upon questions of law reserved by the state not a matter of discretion. If it is a matter of discretion, no bill of exceptions can be taken under section 340, Crim. Pr. Act; and, if no exception can be taken, no appeal can be had therefrom. The granting of the new trial by the court was a matter of discretion, and not a matter of law. The only true way to determine whether the ruling of the court is a matter of discretion or a matter of law is to see what objections were made by defendant's bill of exceptions, and, if they raise questions of fact, they then become mixed questions of law and fact, and not questions of law. In this case nearly the entire 38 specifications of error raise questions of fact, and the thirty-third specification of error, upon which the court granted the motion for new trial, raised a question of fact by alleging that the evidence was insufficient to warrant the giving of the instruction.
This is a mixed question of law and fact, to which no exception can be taken. Kinna v. Horn, 1 Mont. 597; Pomeroy's Lessee v. Bank, 1 Wall. 597; Territory v. Laun, supra. A question of fact being raised by the thirty-third specification of error, if the court held that the instruction was improperly given, the reason which he gave for so holding is immaterial, and no part of the decision, and should not be reviewed by this court. Com. v. Church, 1 Pa. St. 105; McMullen v. Armstrong, 1 Mont. 486. Courts frequently sustain the holdings of the lower court, but upon entirely different reasons than those given by the trial court. Pennoyer v. Neff, 95 U.S. 719; Black v. Mining Co., 3 C. C. A. 312, 52 F. 859. As we understand the case, should this court conclude that the information is sufficient, and instruction No. 10 not error, it can only order the case remanded, instruction the district court, on the retrial of the case,--which has already been granted,--to hold the information sufficient, and to give instruction No. 10 upon the retrial, simply for the purpose of determining the law for future guidance. There can be no reversal of the judgment, State v. Bartlett, 9 Ind. 569; State v. Kinney, 44 Iowa, 444; Elliott's App. Proc. § 298; State v. Granville, 45 Ohio St. 264, 12 N.E. 803. The statute does not confer upon the state a general right to appeal; on the contrary, the right is limited to the classes of cases specified. Hence, it is held that it is only the specific questions properly made and saved that can be considered on appeal. Elliott's App. Proc. § 278; State v. Lusk, 68 Ind. 264.
John T. Smith and E. C. Day, for respondent.
The state has no right to an appeal from, or writ of error to review, a decision in favor of the accused, except when clearly and expressly authorized by statute, whether that decision is upon a verdict of acquittal or question of law and the right exists only when conferred by statute, "expressed in the most plain and unequivocal terms, such as cannot be turned by construction to any other meaning." State v. Jones, 7 Ga. 422; People v. Corning, 2 N.Y. 9; Com. v. Cummings, 3 Cush. 212; State v. Reynolds, 4 Hayw. (Tenn.) 110; Com. v. Harrison, 2 Va. Cas. 202; State v. Kemp, 17 Wis. 690; State v. Burns, 18 Fla. 185; State v. Copeland, 65 Mo. 497; U.S. v. Sanges, 144 U.S. 310, 12 S.Ct. 609; State v. Simmons, (Ohio,) 31 N.E. 34: People v. Raymond, (Colo.) 32 P. 429; State v. Croteau, 23 Vt. 14. The right did not exist at common law, and statutes conferring it must be strictly construed. There can be no appeal by the state or the defendant until final judgment, unless the statute expressly provides for such an appeal. People v. Bork, 78 N.Y. 346; State v. Evansville, etc., R. Co., 107 Ind. 581, 8 N.E. 619. The Montana statute contemplates a final judgment, before the appeal is taken, except where the appeal is taken, except where the appeal is from the order arresting judgment. Section 395, Crim. Pr. Act, provides that "an appeal from a judgment *** may be taken," etc. Section 397: "The appeal must be taken within six months after the judgment is rendered." By section 398, notice must be served upon the clerk of the court "where the judgment was entered, stating that the appellant appeals from the judgment." By section 401, in cases of appeals by the state on reversed questions, the record need contain only "the bill of exceptions and the judgment of acquittal." This question was directly decided in favor of the contention here urged by Mr. Justice Liddell. Territory v. Laun, 8 Mont. 322, 20 P. 652. In New York, under the Laws of 1852, providing that writs of error should be granted to review any judgment rendered in favor of any defendant upon any...
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