Ward v. The State

• Decision Date: 13 January 1909
• Docket Number: 21,276
• Citation: 86 N.E. 994,171 Ind. 565
• Parties: Ward v. The State of Indiana
• Court: Indiana Supreme Court

86 N.E. 994

171 Ind. 565

Ward v. The State of Indiana

No. 21,276

Supreme Court of Indiana

January 13, 1909

From Criminal Court of Marion County (36,323); James A. Pritchard Judge.

Prosecution by The State of Indiana against Charles Ward. From a judgment of conviction, defendant appeals.

Affirmed.

L. Ert Slack, for appellant.

James Bingham, Attorney-General, Alexander G. Cavins, Edward M White and William H. Thompson, for the State.

OPINION

Montgomery, J.

Appellant was convicted of murder in the second degree, and upon this appeal alleges that the court erred, in overruling (1) his motion for a new trial, (2) his substituted motion for a new trial, and (3) his second substituted motion for a new trial. The State has filed a cross-assignment of error, charging that the court erred in admitting the second substituted motion for a new trial to be filed over the objection of the State.

The verdict of the jury was returned on October 12, 1907, and on November 2 appellant filed his motion and reasons for a new trial. This motion was withdrawn on November 26, and another entitled "substituted motion for a new trial," filed. On December 14, 1907, appellant filed a motion asking leave to withdraw this substituted motion, to which the prosecuting attorney, on behalf of the State, objected; but such objection was overruled, and leave granted to withdraw the substituted motion for a new trial. Thereupon appellant filed a second substituted motion for a new trial. The first and second motions for a new trial, having been properly withdrawn, were taken out of the record, and have not been included in the transcript. We are not advised therefore as to their contents. The motion for a new trial embraced in the record was filed sixty-three days after the verdict of the jury was returned, and the Attorney-General insists that, since this motion was not filed within thirty days from the date of the verdict, it was unauthorized, and cannot be considered, and hence no question is presented for review.

Appellant's right to apply for a new trial is founded upon the following statute: "The court shall grant a new trial to the defendant for the following causes, or any of them: [Nine causes are then enumerated.] The motion for a new trial and the causes therefor shall be in writing and must be filed within thirty days from the date of the verdict or finding; and any such cause not disclosed in the record shall be sustained by affidavit. The motion must be filed in open court, if the court be then in session; otherwise it shall be filed with the clerk of the court." § 2158 Burns 1908, Acts 1905, pp. 584, 646, § 282.

No imperative and mandatory duty or requirement rests upon the State to provide a mode of obtaining a new trial or review of the proceedings in favor of one convicted of a criminal charge by a proper judicial tribunal. The granting of such a right is not a necessary element of due process of law, but such privilege may be wholly withheld or granted on prescribed terms in the discretion of the legislative department of the government. In most, if not all enlightened states, a desire to secure the fullest justice attainable has prompted provisions for a new trial when substantial and prejudicial error in the former trial has been seasonably shown by the defendant. The interests of the accused and the welfare of the State demand promptness in the hearing and final disposition of criminal charges. Such cases must, at some time, effectually and finally be terminated in the courts, and thereafter remain at rest. The statute before quoted authorizes new trials for specified causes, provided the application therefor be made in writing within the prescribed time. The legislature manifestly regarded thirty days from the...