State v. Stepp

191 N.W. 482, 49 N.D. 376, 1922 N.D. LEXIS 66

• Court: North Dakota Supreme Court
• Decided: November 25, 1922
• Status: Published

Opinions

Per Curiam opinion.

Pee, Cueiam.

Tbe defendant was convicted of the crime of rape in the first degree in the district court of Eamsey county, on a change of venue from the district court of Cavalier county, and sentenced to two and one-half years’ imprisonment in the state penitentiary. After sentence had been imposed he moved for a new trial. The motion was denied and defendant appealed from the judgment and from the order denying a new trial. The order denying the motion for a new trial was set aside and the cause remanded with directions that the trial court hear such motion anew, and, by application of the legal principles stated in the opinion to the facts in the case as presented on such motion, determine whether a new trial should or should not be had. State v. Stepp, 48 N. D. 566, 185 N. W. 812. In conformity with that decision the motion for a new trial was reargued before the district court and after due consideration the motion was denied. On the former appeal, this court considered and determined adversely to the defendant all questions there presented with the single exception of whether the trial court erred in denying defendant’s motion for a new trial on the ground of newly discovered evidence. This was based upon certain alleged newly discovered evidence relating to the credibility of one Mrs. Manning and the truthfulness of the story which she had told upon the trial. On the former appeal this court was unable to review the ruling of the trial court on this question for the reason that the record did not disclose that the trial court had exercised the judgment which the law requires it to exercise when a motion for a new trial is asked on such ground. In other words, as was said in the former opinion: “The language utilized by the trial judge in the record transmitted to us on this appeal is such that we have some difficulty in understanding exactly what conclusions he did reach so far as the facts are concerned. And it is his judgment, his conclusions as to what the facts are, which in the first instance largely, if not wholly, determine whether a new trial shall or shall not be had. The discretionary power with which trial courts are vested in ruling on motions for a new trial on the ground of newly discovered evidence is primarily applicable to a determination of the facts. The facts being determined, the applicable legal principles readily determine whether a new trial should or should not be had.”

In considering the rules applicable in the district court to a determination of the motion this court said: “The rules governing the consideration of motions for a new trial on the ground of newly discovered evidence have been formulated to aid in the administration of justice, and to prevent a miscarriage of justice. Hence, whore it is shown to the satisfaction of the trial court that since the trial at which he was convicted, a defendant has discovered certain new and material evidence, which he could not with reasonable diligence have discovered and produced at the trial; and the newly discovered evidence is of such probative force and character that, if considered with all the evidence adduced at the trial, it is likely to raise in the minds of reasonable men a reasonable doubt as to the guilt of the defendant, that is that such newly discovered evidence is likely to produce a different result upon another trial of the action — then it is the duty of the trial court, however unpleasant that duty may be, to grant a new trial. . . .”

“In the certificate of probable cause certain language is used, which seems to imply that the trial judge believed that the conviction of the defendant was due, largely if not wholly, to the testimony of the witness Mrs. Manning. He was not justified in denying the motion for a new trial here merely because he was of the opinion that- there was substantial evidence tending to support the verdict. If he was of the opinion that the proposed evidence was newly discovered, and could not with reasonable diligence have been discovered and produced by the defendant upon the trial of the action; and if he further was of the opinion that the newly discovered evidence probably would,- and ought to, bring about a different result upon another trial — in other words, if the trial judge was of the belief that the new evidence was of such character that, considered in connection with the evidence adduced upon the trial, it would be likely to create-in the minds of reasonable men a reasonable doubt as to defendant’s guilt — then, he should have granted a new trial. Or to state the concrete proposition as it appears in this case, it is our opinion that if the trial court was of the belief that the defendant would ■not have teen convicted except for the testimony given by Mrs. Maw ninQj, then he should have granted the motion for a new trial.”

Tbe record before us on this appeal shows that after the case had been remanded, the motion for a new trial was fully argued before the trial court. It is also apparent that the trial court gave the matter careful consideration. He prepared and filed a memorandum decision, from which it appears that he exercised the judgment which the law requires that he exercise when a motion for a new trial is made on the ground of newly discovered evidence. The trial judge reached the conclusion that the motion for a new trial should be denied, and he stated that in his opinion defendant had had a fair trial and that it is not likely that a retrial wrould result in a different verdict.

In our opinion the determination of the trial court must be sustained. Upon the record here we cannot say that that determination is erroneous.

Affirmed.

BiRdzell, Oh. J., and CiiRistiaNsoN and BboNSON, JJ., concur.