United States v. Simmons

27 F. Cas. 1080, 14 Blatchf. 473, 1878 U.S. App. LEXIS 2072

• Court: U.S. Circuit Court for the District of Eastern New York
• Decided: May 27, 1878
• Status: Published

Opinion

BENEDICT, District Judge.

The defendant was tried and convicted in May, 1875. There is no minute of any motion for a new trial having been then entered. A motion in arrest of judgment was made, which was argued and re-argued, and, a' difference of opinion having arisen, the case went to the supreme court of the United States, upon a certificate of division. The decision of the appellate court having been made during the present month [06 U. S. 360], the defendant now applies to have a day fixed for the hearing of a motion for a new trial. The application comes too late. If any objection was intended to be made to the verdict, a motion for a new trial should have been promptly made. No reason for the delay has been suggested, and. to permit such a motion^ to be now made, after the lapse of three years, and where, as may well be supposed, the witnesses are scattered, would be highly improper. Ordinarily, it is too late, after a motion in arrest of judgment has been made, to apply for a new trial; and, although, when a motion for a new trial and a motion in arrest of judgment have been entered simultaneously, and the latter is first argued, by direction of the court, the former may be thereafter argued, yet, in a case like this, when the question of a new trial is, for the first time, raised after the decision upon the motion in arrest, it cannot be entertained. The motion is, therefore, denied.