*735 The opinion of the court was delivered by
This is an appeal by the State from an order granting defendant a new trial following his conviction of grand larceny.
The defеndant was charged with the larceny of a hat and topcoat alleged to be of the value of $60. We are told thаt the jury found the property to be of the value of $35. Following his conviction defendant filed a motion for a new trial, allеging four grounds — (1) the admission of illegal and improper testimony over his objections; (2) the verdict was contrary to law and the evidence; (3) insufficiency of the State’s evidence to warrant a conviction of grand larceny; and (4) the alleged аrraignment of defendant on the opening day of the term of court at which he was tried, in the absence of his counsel.
This mоtion was argued orally by counsel for the State and defendant, and taken under advisement. Later, counsel for both sides filеd written briefs and further oral argument was had. The motion was sustained and the journal entry covering such ruling recites:
“Thereupon thе court having heard the oral arguments and examined the written briefs of the respective parties of record and being now fully advised and informed in the premises finds that said motion for a new trial should be sustained and the verdict of the jury heretoforе rendered set aside and held for naught and defendant granted a new trial.”
At the outset it should be noted that defendant questions thе State’s right to appeal from an order such as this, citing G. S. 1949, 62-1703, which provides that appeals to this court may be taken by the State only (1) from a judgment for defendant in quashing or setting aside an indictment or information; (2) upon an order arresting the judgment; and (3) uрon a question reserved by the State. It is contended that only the third ground could possibly have any application to this аppeal, and that as the record is silent concerning any “reservation” by the State it therefore is precluded from appealing.
We think there is no merit to defendant’s contention in this respect. While it is true the statute above referred to does not specifically mention the granting of a defendant’s motion for new trial as being one of the instances in which the State may appeal, yet this court has held that in order to reserve a question for presentation to the Suрreme Court on an appeal by the State it is unnecessary for the State to do more than should be done by a
*736
defendant to lay the foundation for an appeal by him. See
State v. Simpson,
The record before us establishes that the State resisted defеndant’s motion for a new trial. Had the motion been overruled all that would have been required of defendant in order to аppeal would have been for him to file his notice of appeal. Under the holding in the Simpson case, supra, it therefоre appears the State did all that was required of it when it filed its notice of appeal from the court’s ruling.
Considerable testimony of the complaining witness concerning the value of the articles allegedly stolen from him is abstracted, together with objections thereto by defendant. While there are some conflicting statements made by counsel in the abstrаct and counter abstract concerning the exact ruling of the court on objections to the competenсy and admissibility of this particular fine of testimony, yet from the record as a whole we understand the court permitted most, if not all, of this evidence to go to the jury.
Included in the abstract is a statement by counsel for the State to the effect that when ruling on the motion for new trial, the trial judge orally stated that he did not believe the prosecution had proved the valuе of the articles stolen and that he was going to grant a new trial because of that. This alleged oral remark by the trial judge apparently was not made in the presence of the official court reporter and is not abstracted as a part of the record, as such. Under those circumstances such gratuitous statement of counsel for the State, bеing unsupported by the record, cannot be considered and forms no basis upon which error may be established.
(State v. Ryan
There is still аnother reason why we think it is unnecessary to go into the question of the competency and admissibility of that particular line of testimony. The motion for new trial contained four grounds. The journal entry covering the court’s ruling sustaining the motion is silent conсerning the ground or grounds upon which the ruling was made. Under such circumstances this court cannot reach out and determine thе correctness of the lower court’s reasoning which prompted it to sustain the motion.
*737
And this brings us to the real issue in this appeal, namely, did the lower court err in granting a new trial? The State, in effect, asks this court to set aside the order and to reinstate the verdict of guilt. On the record before us we cannot do so. In the first place, the reasons which may have prompted the trial court to grant a new trial are not shown. Many things occur during the trial of a case which are not refleсted in the cold printed record on appeal. It may be that the trial court was simply of the opinion the defendаnt had not had a fair trial. It may be that it was in doubt as to the sufficiency of the evidence. The trial court saw the witnesses and heard them testify. We are deprived of that advantage. At any rate, its action indicates clearly that it could not approve the verdict, and that being the case it was its imperative judicial duty to grant a new trial. In
State v. Miller,
The judgment is therefore affirmed.