| Nev. | Jul 1, 1868
By the Court,
The defendant was arraigned and tried upon an indictment for murder, and convicted of manslaughter ; but upon his application the Court below entered an order setting aside the verdict and granting a new trial, from which the State appeals, claiming that the order was erroneous, because not made upon a statement or bill of exceptions. This is the only point made .by the Attorney General, and is perhaps the only one which can be made upon the record, in the condition in which it comes before us. The position taken by the State and the argument on its behalf may be thus stated in brief. A new trial in a criminal case can only be granted upon an application by the defendant based upon a statement or bill of exceptions. No statement or bill of exceptions having been filed in this case, therefore the order granting a new trial was without authority, and should be set aside.
By Sec. 428 of the Criminal Practice Act the District Courts of this State may grant a new trial upon the application of the defendant in the following cases:
. “ First, when the trial has been had in his absence, if the indictment be for felony. Second, when the jury has received evidence out of Court other than that resulting from a view, as provided in section three hundred and seventy-one. Third, when the jury had separated without leave of the Court, after retiring to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case. . Fourth, when the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors. Fifth,*75 when the Court has misdirected the jury in a matter of law. Sixth, when a verdict is contrary to law or evidence.”
The right to grant new trials being thus conferred upon the District Courts, its exercise by them in any pat'ticular case will be presumed to be correct and proper until the contrary is shown. The action or judgment of a Court of general jurisdiction cannot be set aside or reversed by an appellate tribunal until it is affirmatively shown to be erroneous or illegal. Whilst such Court acts within the province of its jurisdiction the law always indulges the presumption that its proceedings are correct and regular; hence where an appeal is taken from a judgment rendered, or order made by it, the burden of establishing error is upon the appellant.
It is unnecessary for the respondent to make any showing whatever until the appellant has overcome the legal presumptions in favor of the regularity of the Court’s action. The Court below having granted the defendant in this case a new trial, the burden of showing that it erred in doing so devolves upon the State, and the record must show, not a mere possible error — it must not be left to mere conjecture. And before everything else it must be satisfactorily shown that the Court did the act complained of. The State in this case must make a sufficient showing that the Court below had no statement or bill of exceptions upon which to base its order for new trial, before it will become necessary to determine whether either was necessary to enable it to make such order or not. The statute has provided the manner in which the action of the lower Court is to be brought up and authenticated on appeal— that is, by an agreed or settled statement, or by a bill of exceptions. Without either, the appellate Court cannot look beyond the judgment roll. The appellant in this case complains that the Court below granted a new trial without having before it a statement or bill of exceptions. But how is this Court to know that it had not ? The statutory method of bringing such a fact before the appellate Court is by statement. But no statement is brought before us in this case, and the only evidence we have that the order was made without a statement or bill of exceptions is the certificate of the clerk that none had been filed in his office. There is no law authorizing the review of the action of a lower Court upon the
That a statement or bill of exceptions was necessary in this case to authorize the District Court to grant a new trial is, however, a mistake. When the ground upon which the new trial is granted is of a character that cannot properly be presented except in one of those methods, it is conceded that it should be so presented. But there are many cases in which a new trial may be granted simply upon affidavit, without either bill of exceptions or statement. The first, second, third, and fourth grounds, upon which the Court is authorized to grant a new trial, by Sec. 428, above referred to, cannot very well be presented except upon affidavit. Suppose the trial took place in the absence of the defendant, that fact would not be brought to the attention of the Court by any bill of exception's, or statements; it could not very well be presented except by affidavit. But an affidavit showing such fact would strictly be neither a statement nor bill of exceptions. That a sufficient showing to warrant a new trial was not made to the Court by affidavit does not appear even by the certificate of the Clerk. How then can the order made by the Court be declared to be erroneous, and reversed ? The presumption is that the Court acted correctly;
But there is another reason why the order must be affirmed. Sec. 426 of the Criminal Practice Act provides that: “ When any written charge has been presented and given or refused, the question or questions presented in such charge need not be_ excepted to, nor embodied in a bill of exceptions, but the written charge itself, with the indorsement showing the action of the Court, shall form part of the record, and any error in the decision of the Court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions.”
The record in this case contains the written charge of the Judge, with the proper indorsement upon it. Any questions therefore made upon it, or upon the instructions given or refused, may be reviewed without a formal bill of exceptions, and any material error in the charge, likely to prejudice the defendant, would make it the duty of the Court below to grant a new trial, without a statement or bill of exceptions being presented to it. We find some instructions in the record given by the Court, at the request of the prosecution, which under some character of proof would be erroneous. What the proof was we do not know, but as the Court below set aside the verdict, it may be presumed that the evidence was of such character as to make some of the instructions incorrect. At least the appellant, whose duty it was to affirmatively show that the Court below erred in granting a new trial, has not done so.
The order granting a new trial must therefore be affirmed.