State v. Schoenborn

• Decision Date: 03 March 1919
• Docket Number: 3962.
• Citation: State v. Schoenborn, 55 Mont. 517, 179 P. 294 (Mont. 1919)
• Parties: STATE v. SCHOENBORN.
• Court: Montana Supreme Court

179 P. 294

55 Mont. 517

STATE v. SCHOENBORN.

No. 3962.

Supreme Court of Montana

March 3, 1919

Appeal from District Court, Phillips County; F. A. Thompson, Judge.

Theodore E. Schoenborn was convicted of felony, and from an order granting a new trial the State appeals. Order affirmed.

E. D Phelan, of Helena, for the State.

HOLLOWAY J.

The defendant was convicted of a felony, and the state has appealed from an order granting him a new trial.

Several of the statutory grounds are mentioned in the motion, but in this court the argument in support of the ruling is confined to one, viz. the verdict is contrary to the evidence.

In 1863 the Supreme Court of California, in Quinn v. Kenyon, 22 Cal. 82, said:

"It is only in rare instances, and upon very strong grounds that this court will set aside an order granting a new trial." The language was quoted with approval by this court in McCauley v. Tyler, 11 Mont. 51, 27 P. 391, and the principle has been adhered to consistently since that case was decided. See Gibson v. Morris State Bank, 49 Mont. 60, 140 P. 76.

If the same judge who presided at the trial had presided when the motion was granted, our review would be limited to an examination of the record to ascertain whether there is disclosed a substantial conflict in the evidence or an absence of evidence necessary to make out a case. State v. Foster, 26 Mont. 71, 66 P. 565. But Judge Utter, who presided in court when the motion for a new trial was heard and sustained, did not preside at the trial of the cause, and for this reason it is suggested that a different rule should govern our review of the order.

The right of a defendant who has been convicted to move for a new trial upon the ground that the verdict is contrary to the evidence is one conferred upon him, to the exclusion of the state, by statute (section 9350, Rev. Codes), and the authority of the district court to grant the motion is confirmed by the same section, and that, too, without reference to the fact that a different judge may preside at the hearing of the motion from the one who presided at the trial. It may be conceded that, by reason of the fact that Judge Utter could not be aided by any impressions received from the testimony of living witnesses, the order is not entitled to the support of all the presumptions which would have attached to it if the same judge who heard the motion had presided at the trial; still, after making every proper allowance for the judge's disadvantageous position, the court was required to exercise judicial functions-to determine whether, upon the record, the verdict was contrary to the evidence. In re Williams' Estate, 50 Mont. 142, 145 P. 957.

In civil actions, a new trial may be granted for "insufficiency of the evidence to justify the verdict." Section 6794, Rev. Codes. This language has been uniformly held to require the court to grant a new trial if in its judgment the weight of the evidence does not justify the verdict. Hamilton v. Monidah Trust, 39 Mont. 269, 102 P. 335; Harrington v. Butte & B. M. Co., 27 Mont. 1, 69 P. 102; Patten v. Hyde, 23 Mont. 23, 57 P. 407. The expression, "the verdict is contrary to the evidence," has been held to mean the same thing as the expression, "insufficiency of the evidence to justify the verdict." Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 111 P. 348.

A defendant in a criminal case who has been convicted is not required to show an entire absence of evidence of some fact necessary to make out a case, in order to secure a new trial but if he can convince the district...