Casteel v. State

9 Wyo. 267 | Wyo. | 1900

Coen, Justice.

Upon a trial before a jury in the district court the plaintiff in error was found guilty of the crime of manslaughter, the verdict being returned upon the 26th day of May, 1899. Of the date of June 2d following, the transcript shows the following entry: “Comes now the above-named defendant in person and accompanied by his attorney, and also comes the State of Wyoming by the county and prosecuting attorney, and now the said defendant by his counsel asks leave of court to file his motion for a new trial herein, which permission is granted by the court, and the motion is accordingly filed. ’ ’ Upon the next day the motion was heard and denied generally, no reasons being specified in the order. A bill of exceptions was signed, and the case brought to this court. It was argued here and submitted on the merits. Subsequently, on the 24th day of May, 1900, and prior to any decision in this court, the District Court made an order which, after reciting that the former order did not set forth the facts occurring on that date, is as follows: “ It is therefore ordered that the said entry herein entered on the said 2d day of June, 1899, be and the same is corrected and amended so as to read as follows: ‘ Comes now the above-named defendant by his counsel and files his motion for a new trial herein.’ And it is therefore ordered that the said entry be made as of the said 2d day of June, 1899.” The above correction was certified to this court, and, upon the recoi’d as amended, the Attorney General moves to dismiss the proceedings in error upon the ground that the motion for a new trial was not filed within the time required by the statute. The plaintiff in error, upon the other hand, moves this court to strike the amended record from the files, for the reason that a suggestion of a diminution of the record comes too late after the cause is submitted, and for the further reason that a record cannot be amended after the term at which it was made up, unless there be something to amend by, such as a minute or memorandum made at the time the original record was made, or where the record itself shows facts which would authorize the amendment.

The criminal code, Rev. Stat., Sec. 5416, provides;

‘ ‘ An application for a new trial shall be by motion upon written grounds, which shall be filed at the time the verdict is rendered, and except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be filed within three days after the verdict was rendered, unless additional time be granted by the court upon good cause shown.”

Under the circumstances of this case we deem it unnecessary to decide whether it was competent for the court to amend tbe record as was attempted to be done after the term. It is the law of this State that nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial. Seibel v. Bath, 5 Wyo., 409. And all the alleged errors in this case, are such as should have been assigned as grounds for a new trial. The statute requires that the motion shall be filed within three days after the verdict was rendered. This court has no power or authority to disregard or set aside this provision. It is mandatory and binding upon us, and no authority is lodged in this court to change or modify its requirements. The exceptions to its operation are clearly set out in the statute itself, and ample provision is also made for obtaining additional time in cases where a proper showing is made to bring to the knowledge of the district court that additional time is necessary. Where a defendant has suffered the time to elapse without filing his motion and without any application to the court for additional time, his right is lost, and it is not in the power of this court or the district court to restore it in the face of the statute.

By the original record in this case, and leaving entirely out of consideration the attempted amendment, it does not appear that there was any compliance with the requirements of the statute, but upon the contrary it does appear with reasonable certainty that there was an entire failure upon the part of the defendant to bring himself within its provisions. Not only does it fail to appear that there was any good cause shown for the granting of additional time, but there is no intimation in the record that there was any application or request for additional time. The utmost that can be inferred from the record is that after the expiration of the time, and when the defendant’s right was barred by the statute, application was made to the court to permit the filing of the motion in disregard and violation of the statute. This the court had no power to do. The right of the defendant was lost by operation of law, and the court had no power to restore it.

The purpose of a motion for a new trial is twofold: first to obtain a re-examination of the questions by the district court, and to give that court an opportunity to correct its own errors; and second, to lay the basis for an appeal to this court. Whether the District Court, under its general power to revise its own orders during the term, may set aside a verdict upon a motion, filed after the expiration of the time allowed, or upon its own motion, is a question which we do not decide, as it does not arise in this case; but that it cannot give to the defendant 'a standing in this court by permitting the defendant to file his motion out of time is, we think, perfectly clear. And it makes no difference at what stage of the proceedings in error the attention of this court is called to the fact that such alleged errors were not properly presented to the court below by a motion for a new trial. That step being essential to the exercise of the powers of this court, whenever it appears that the errors complained. of were not presented to the lower court in the manner required by statute, this court must refuse to consider them.

While the decisions are not uniform upon the questions involved, we think the great weight of authority sustains the view we have taken. In Missouri it is held that “when a party sleeps upon his rights until the time allowed him by law to make a motion for a new trial expires, he can no longer claim to make the motion as. a matter of right; but he may afterward suggest to the court that substantial justice has not heen done him, and the court may look into the matter or not. If they refuse to grant the party a new trial, no error will lie, because no law authorized him to make the motion after the four days expired.” Williams v. Court, 5 Mo., 248; Richmond v. Wardlow, 36 Mo., 313. And the Nebraska court takes the same view. Fox v. Meacham, 6 Neb., 532. In California the statute provided that the time allowed by the code might be extended upon good cause shown by the court in which the action was pending, or a judge thereof. The court in that State held that as the right to move for a new trial is statutory, it must be pursued in the manner pointed out by the statute; and that after the time fixed by statute has expired, the courts have no jurisdiction to extend or revive such right. Burton v. Todd, 68 Cal., 489; Thompson v. Lynch, 43 id., 482; Clard v. Crane, 57 id., 629. And the Nevada court has decided the question in the same way. Killip v. Mill Co., 2 Nev., 34. In Michigan the statute provided that the court in which the trial of any indictment might be had, might at the same term or at the next term thereafter, grant a new trial. Upon conviction of a felony, time was given in which to move for a new trial, and this time was subsequently extended beyond the period provided by the statute. Within such subsequent extension the motion was filed and an order entered granting a new trial. The court say that new trials are’purely statutory and courts have no right to annul the statute; that the order was without the jurisdiction of the court, and void.

And statutes which provide for steps in the court below other than the motion for a new trial but essential to the exercise of the right to institute proceedings in error, receive a similar construction.

In Arkansas the statute provided that in appeals in misdemeanor cases, the record must be lodged in the appellate court within sixty days after the judgment. In a case in which it was not filed within the time an affidavit of due diligence was presented which the attorney general admitted to be sufficient, and he consented that the transcript might be filed, provided he had the power or right to waive the time of filing. The court held that the right of appeal must be exercised under such restrictions as the Legislature may see proper to impose, and that the appeal must be dismissed. Smith v. State, 48 Ark., 148. And a like statute was construed in thq same way in Kentucky. Com. v. McCready, 2 Met., 376. An act of Congress directed that notice of an intention to appeal should be filed within six months and on failure to file such notice, the appeal should be regarded as dismissed. The appellant proved to the satisfaction of the lower court that the omission to file the notice was due to the sickness of counsel and wholly accidental, and the court allowed the motion and ordered the notice to be filed mmc pro tuno. But upon a hearing the District Court dismissed the appeal upon the ground that its own order was void. Upon an appeal to the Supreme Court it was held that the statute was mandatory and that the appeal was properly dismissed. Yturbide v. U. S., 22 Howard (U. S.), 290. In California the statute limited the period in which an appeal could be taken to 90 days. The case had been heard in the Supreme Court and the judgment reversed. Upon a motion for a rehearing it. was brought to the attention of the court that the appeal had not been taken within the time limited. The rehearing was granted upon the ground that the Supreme Court had no jurisdiction of the case. Dooling v. Moore, 20 Cal., 142. The principles which govern are the same as in the case before us.

The position that the failure of the record to show that the State objected to the consideration of the motion upon the specific ground that it was filed out of time, operates as a waiver and that the motion at this time comes too late, is not tenable. To say nothing of the possible right of the court below to allow the motion in furtherance of justice, though filed out of time, a point which we do not decide, there is no more convenient method of having a motion disposed of than to ask that it be heard and allowed or denied as under all the circumstances may seem legal and proper. The motion in this case having been submitted and overruled, and no specific reason for the decision appearing in the record we cannot assume that no objection to the allowance of the motion was made upon the ground that it was filed too late. But upon the contrary under the general presumption in favor of the correctness of the decisions of the lower court, we must presume that the court denied it for that reason. Bank v. Bennett, 138 Mo., 501. Even if we grant, therefore, that the State could give this court jurisdiction by the waiver of objection on account of failure to file the motion in time, there was no waiver in this case. It may be proper to add in this connection that the counsel appearing for the plaintiff in error in this court do not appear from the record as representing the defendant in the court below.

The motion to dismiss the proceedings in error must be sustained. Petition in error dismissed.

Dismissed.

PotteR, C. J., and Knight, J., concur.