State v. Davis

Criminal Law — Application for New Trial — Time of Making the Same. — An application for a new trial, in a criminal action, ¡must be made within ten days after verdict, or within such time as the trail court, or judge thereof, may within such ten days grant, and an application made thereafter must be denied. Same — Jurisdiction—Appeal.—District courts have no jurisdiction to grant an application for a new trial made four years after verdict in a criminal action, and an appeal from an order denying such application will be dismissed on the ground of want of jurisdiction in the appellate court to reverse such order. (Syllabus by the court.)

APPEAL from District Court, Cassia County. The doctrine of the common law, that one convicted of a felony is denied the right to a new trial, has never been the law in the United States, and is universally rejected in state and federal courts as obnoxious to, and irreconcilable with, the spirit of our institutions. No distinction is made by our courts between felonies and misdemeanors, except that a new trial is more readily granted to one convicted of felony, as the consequences of refusal are greater. (14 Am. & Eng. Ency. of PL & Pr. 838; State v. Tomlinson, 11 Ohio, 401; State v. Jones, 12 Mo. App. 93.) Statutes of this state relating to new trials in criminal cases: Section 7952 of the Eevised Statutes of Idaho provides that defendant may have, upon his application, a new trial among other grounds: 7. “When new evidence is discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial.” Section 7959 provides: “The application for a new trial may be made before or after judgment, and must be made within ten days after verdict, unless the court or judge extends the time.” It is manifest that the statute authorizes the application for and granting of a new trial upon the ground of newly discovered evidence, and it is equally clear that there is no provision in the statute in relation to the time when the application should be made in cases where the new evidence is discovered after the expiration of ten days from the time the verdict was rendered. The question is, Has the defendant the right to make this application? The statute of the state of Washington is the same as that of Idaho, and in State v. Stowe, 3 Wash. 206, 28 Pac. 337, 14 L. E. A. 609, the court says: “But, after all is said and done, any attempt to lay down rules of construction for this section is simply an enlargement in words of the idea so completely expressed in the statute, if it is material testimony, it can only be material, because it would tend to strengthen the applicant’s case, and probably lead to different results, and if it is material, and the applicant could not have discovered it with reasonable diligence, justice demands that he should have the benefit of .it. No fixed rule can be established for the measurement of every case; no iron-bound rule prescribed, but each case must be governed by the circumstances surrounding it.” (Spicer v. Simms (Ariz.), 57 Pae. 610; People v. Plummer, 9 Cal. 310; State v. Tomlinson, 11 Iowa, 401; Waterman on New Trials, 1227; Commonwealth v. Green, 17 Mass. 533; United States v. Fries, 3 Dali. 515, 24 Fed. Cas. No. 5126; State v. Brown, 16 Conn. 54; Buzzell v. State, 59 N. H. 61; State v. Prescott, 7 N. H. 287, 288; Ball v. Commonwealth, 8 Leigh (Va.), 726; United States v. Harding, 1 Wall. Jr. 127, Fed. Cas. No. 15,301; State v. Armstrong, 48 La. Ann. 314, 19 South. 146; People v. Kelleher (Cal.), 16 Pac. 705; Newgent v. Met. By. Co., 46 App. Div. 105, 61 N. T. Supp. 476.) We do not deem it advisable to follow the arguments put forth in appellant’s brief, as this court and all the courts of states having statutes similar to ours have held that the provisions of such statute regulating'the granting of a new trial were mandatory, and that the statutory provisions must be strictly complied with, and that unless an application for a new trial be made witbin the time and in the manner designated in the statute permitting applications for a new trial to be made, the court to which application was made had no jurisdiction to grant the same, and the appellate court no jurisdiction to consider an appeal from an order denying such application. For this reason we have thought best to make a motion to dismiss the appeal in this ease, for the reason that the provisions of the statute in regard to applications for a new trial have not been complied with, in that the application for a new trial was not made within ten days after the rendition of the verdict in said cause, or the time for maldng such application ivas not extended by order of the court or judge. (Idaho Rev. Stats., sec. 7953; State v. Smith, 5 Idaho, 291, 48 Pae. 1060; State v. Dupuos, 7 Idaho, 614, 65 Pae. 65; State v. Bice, 7 Idaho, 762, 66 Pac. 87; Conner v. Southern Cal. M. B. Co., 101 Cal. 429, 35 Pae. 990; California Imp. Co. v. Baroteau, 116 Cal. 136, 47 Pac. 1018; Burton v. Todd, 68 Cal. 485, 9 Pac. 663; People v. Ah Sam, 41 Cal. 645; Spencer v. Branham, 109 Cal. 336, 41 Pae. 1095; Wheeler v. Karnes, 125 Cal. 51, 57 Pac. 893.) However, this same question has practically been before .this court in this case, and therein this court announced its decision supporting the doctrine above stated. That decision became the law of this case, and so far as this case is concerned, the question is res judicata. (State v. Davis, 7 Idaho, 776, 65 Pae. 429.)