State v. Northrup , 1893 Mont. LEXIS 78 ( 1893 )

De Witt, J.

The defendant was convicted in the district court of murder in the second degree. He moved for a new trial, which motion was by the court granted. From the order granting defendant’s motion for a new trial, the state has appealed to this court. The respondent moves to dismiss the appeal on the ground that the law does not permit the slate to appeal from that order granting defendant a new trial.

The state took a bill of exceptions to the order of the district court granting the motion for a new trial, and reserved what it contends is a question of law decided (and erroneously decided) by the district court, in granting the motion. Respondent says that the question so decided by the district court was not one purely of law, but one of discretion. (Crim. Prac. Act, § 340.) But this contention of counsel will be passed. In the view that I take of this appeal, I may assume that the question decided by the district court and reserved by the state was one of law purely.

The state bases its claim to the right of appeal upon section 396, Criminal Practice Act, which section is contained in chapter 15 of that act, and which chapter is devoted to the subject of appeals in criminal cases. That section is as follows:

“Sec. 396. Appeal to the supreme court may be taken,by the state in the following cases, and no other: 1. Upon a judgment for the defendant in quashing or setting aside an indictment; 2. Upon an order of the court arresting the judgment; 3. Upon a question of law reserved by the state.”

The state takes its appeal under what it claims is the authority granted by the third subdivision of the section just quoted.

We may start with the settled proposition of law that the state has no appeal in criminal cases, unless the same is expressly granted by law. This is the law of almost all the courts of this country. (See cases cited by counsel on this argument.)

Mr. Justice Gray, of the United States supreme court, says, after reviewing the English decisions: “But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and'in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by the court of a question of law.” (United States v. Sanges, 144 U. S. 312.) The learned justice then reviews the American authorities upon the subject.

' I am satisfied with the reasoning and authority of the eminent tribunal rendering that decision, and of the distinguished courts cited by Mr. Justice Gray. In the same line of thought is the following language of this court in Territory v. Laun, 8 Mont. 325:

“The right of appeal by the state should be strictly construed and limited to those instances mentioned; and that such was the intention of the legislature is most evident, or it would never have used the emphatic language found in section 396 of the act referred to, where it says, ‘ appeal to the supreme court may be taken by the state in the following cases and no other’ ”:

I will, therefore, direct my inquiry to a determination of whether section 396, subdivision third (in connection with the whole of chapter 15 of our Criminal Practice Act), gives the state the right of appeal from an order of the district court granting defendant’s motion for a new trial. That section and subdivision third give an appeal “ upon a question of law reserved by the state.” That section does not itself provide how the question of law is to be reserved, but I think that this is made clear by sections 401 and 340, Criminal Practice Act. Section 401, found in the chapter 15, above noted, provides as follows:

“Sec. 401. In case of an appeal from a question reserved, on the part of the state, it is not necessary for the clerk of the court below to certify, in the transcript, any part of the proceeding and records, except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the supreme court may direct any other part of the proceedings and record to be certified to them.”

This section thus has in view an appeal under the provisions of the third subdivision of section 396, that is to say, upon the question of law reserved; and it provides for bringing the bill of exceptions to the supreme court, and if the bill of exceptions defectively states the question of law reserved, the court may direct other portions of the record to be certified up. This seems to contemplate the reserving of the question oí law by a bill of exceptions.

Turning to section 340, Criminal Practice Act, we find it provides that, “ The district attorney, or any counsel for the state, may except to any decision of the court upon a question of law, in admitting or rejecting witnesses, or testimony, or in deciding any question of law, not a matter of discretion, or in giving or refusing any instructions to the jury, when the case is finally submitted to them.”

Thus we here find matters to which the state may except. They are defined specifically and are not as extensive as the rights of exception given to a defendant for, “exceptions may be taken by the defendant to any decision of the court upou matters of law affecting his substantial rights.” Among the exceptions given to the state (section 340) is not one given in terms to an order granting a new trial to defendant. Of course, I understand that the language of section 340, “ in deciding any question of law not a matter of discretion,” is broad enough to include an exception to an order granting defendant a new trial, if such an order decides a pure question of law, not of discretion. But I suggest these views of section 340 simply as a tendency of the intent of the Criminal Practice Act (taken in connection with the more pointed expressions of the intent, which I will review below) to exclude the appeal by the state from an order granting a new trial to a defendant. For it is observed, that section 340 descends into details in some matters; for example, it mentions a decision in admitting or rejecfcing -witnesses or testimony, and in giving or refusing instructions. The granting of a new trial is a decision as important and vital as are those specifically mentioned in section 340. Indeed it is a decision of such prominence in the case, that I have found no court ever holding that an appeal could be taken from it, unless specially authorized by statute. California is the only state in which I find that the statute provides for such an appeal, and that state seems to have had such statute since its organization.

Therefore if our legislature had intended that an exception could be taken to such an order, as laying a foundation for appeal on a question of law reserved, it would seem, in view of the history of jurisprudence on this subject, that it would have been natural that such order be mentioned specifically in section 340. As above noted, these considerations do not at all conclude my views as to the appealability of the order. But they do indicate a tendency of expressed intent, not out of line with the direct expressions of the legislature, which I shall examine later in this opinion.

I am of the opinion that if the state wishes to have reviewed a question of law reserved under the provisions of section 396, third, it must be done upon an appeal from the judgment. Such is indicated to have been the opinion of this court in Territory v. Lawn, 8 Mont. 324, in which Mr. Justice Liddell, for the court, says: “This last ground,” that is to say, upon a question of law reserved by the state, “is evidently the law under which the present appeal is prosecuted; and in order that the territory can have this appeal considered, it must show by the record that there is a question of law to be decided, not within the discretion of the trial judge, and that the appeal is prosecuted from, a judgment. ”

The view is thus expressed, that a question of law reserved is to be considered by this court only upon an appeal from a judgment. An order granting a new trial is not a judgment. I do not consider that those remarks in Termtory v. Laun were necessary to the decision of that case, and are therefore not now controlling; but, as far as dictum may suggest, what may be the opinion of the court, the language in that case shows the tendency of the view of this court at that time (1889).

As noted above, the right of appeal by the state must be strictly construed (Territory v. Lawn, 8 Mont. 324), and must be granted by express statute. (United States v. Sanges, 144 U. S. 310.) If the right is given at all by statute, it is granted by section 396, third. (Territory v. Laun, 8 Mont. 324.) That section and subdivision provide that the appeal may be taken by the state “ upon a question of law reserved.” I think that they refer to the subject matter, to be reviewed on the appeal, to wit, a question of Jaw reserved by a bill of exceptions, and do not purport to describe from what the appeal is to be taken, whether from an order or the judgment. The appeal is upon a bill of exceptions carrying up the question of law. The bill of exceptions is a vehicle by which the alleged error is conveyed to the appellate court for consideration. I am therefore of opinion that the section and subdivision describe the subject to be reviewed, and the method of preserving it for review, and do not provide whether the subject so preserved for review shall be considered by the appellate court by an appeal from the order of the district court which erroneously decided the question of law, or whether by an appeal from the judgment in the case.

But examining the whole of chapter 15, in which is found section 396, we find mucli light as to the practice laid down for bringing up for review the question of law reserved. This chapter 15 is upon the subject of appeals in criminal cases generally, and is composed of section 394 to section 409, Criminal Practice Act. Every thing that is said in the chapter is as to appeals from a judgment. There is nothing as to an appeal from an order granting a new trial.

Section 395 is, in orderly consideration, the introductory section of the chapter, although it appears as the second section.

It reads as follows:

“Sec. 395. An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this chapter.”

-Here we find an appeal from the judgment is provided for, and it is “in a criminal action,” including, apparently, appeals by both the state and defendant.

Next in proper order should be read section 394, as to t appeals by defendant. That is as follows:

“Sec. 394. An appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him, and upon appeal any decision of the court or intermediate order made in the progress of the case may be reviewed.”

So it appears that the defendant must appeal from the judgment, and thereupon intermediate orders may be reviewed. ■

Then comes section 396, which is cited above in full as to appeals, by the state. Then we may consider section 397:

“Sec. 397. The appeal must be taken within six month's after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.”

Here the time within which the appeal may be taken is fixed. It is within six months after the judgment. If an appeal may be taken from an order granting a new trial, when is it to be taken? The statute is silent; and it is silent, in my opinion, because it did not contemplate such an appeal.

“Appeals are matters of statutory regulation. There must be a substantial compliance with the statute in order to confer jurisdiction upon the appellate court. The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court. (Courtright v. Berkins, 2 Mont. 404.)” (Territory v. Hanna, 5 Mont. 247, cited in State v. Gibbs, 10 Mont. 210.)

But we find no statutory regulation for taking an appeal from an order granting a new trial in a criminal case. If chapter 15 had intended to allow an api>eal from such an order, it seems that it would not have been wholly silent as to the time in which it might be taken. What practice is the state to follow? When shall it take iIs appeal? How is this court to determine whether it is taken in time? The legislature surely did not intend to leave all these questions open. I do not think of any other instance where the statute has giveu an appeal and omitted to provide a time in which it is to be taken.

We also next observe that there is no method laid down for taking such an appeal. Section 398 provides as follows:

“ Sec. 398. An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the attorney prosecuting. If taken by the slate, a similar notice must be served iipon the defendant, if he can be found in the country; if not found, by posting up a notice three weeks in the clerk’s office.”

Thus it appears that the notice of appeal is to state that the appellant appeals from the judgment. There is no provision for a notice of appeal from an order granting a new trial. The remarks above made as to section 397, are also in point as to section 398.

Section 399 is as follows:

“Seo. 399. An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant until the judgment is reversed.”

Here, again, the judgment seems to be in contemplation, and not an order granting a new trial.

Section 401, which I have quoted above, regulates the preparation of the record on appeal. There should be certified up a bill of exceptions, and the judgment of acquittal. Here again we find the judgment only in contemplation.

Section 404 provides: “ The appellate court may reverse, affirm, or modify the judgment appealed from.” Here, again, the indication is that the judgment alone is appealed from.

So, throughout the whole of this chapter 15, every expression indicates that the legislature intended that the appeal should be from the judgment. The whole chapter is in pari materia, and is to be construed with section 396, third, which is a part thereof. To hold that the state may appeal from an order granting a new trial, I think, would not be in accord with the expressed general intent of chapter 15, in view of all of its provisions and the history of judicial decisions upon this subject. The question is not without difficulty. I have approached its consideration with preconceptions opposed to the view which I now feel compelled to entertain and express. It is true that this view debars this court from reviewing an order of the district court granting a defendant’s motion for a new trial. I believe it would be well if such review could be had upon questions purely of law, but that is for the legislature, and to their wisdom I commend the consideration of the subject. In this particular case at bar, a review of the order of the court below would be an advantage, for I doubt that this court would be able to agree to the correctness of the ruling of the district court as to instruction No. 10, in connection with other instructions given.

I do not think that the district court, even in effect, quashed or set aside the information or arrested the judgment. The motion of the defendant was for a new trial. In granting the motion the judge expressed doubts as to the sufficiency of the information, but the order of the court did not expressly set aside the information; nor was the effect of the order to set it aside or to arrest the judgment. (Crim. Prac. Act, § 357.) The order granted a new trial, and the effect of this order is to place “ the parties in the same position as if no trial had been had.’* (Crim. Prac. Act., § 353; State v. Thompson, 10 Mont. 562.) Therefore, in the case at bar the order granting the new trial left the case standing for trial upon the information as filed. The granting of a new trial materially differs, in effect and results, from arresting the judgment. The granting a new trial goes back to the information, and wipes out the proceedings subsequent to the information. It lifts up the case and sets it back to the information for a new start at that point. On the other hand, an arrest of judgment cuts deeper. It attacks the foundation. It destroys the information (Criminal Practice Act, section 359) on the ground: 1. That the offense is not within the jurisdiction of the court; or, 2. .That the facts stated do not constitute an offense. (Crim. Prac. Act, § 357.) The order arresting judgment is more of the nature of a final judgment; in fact, quite of that nature. It leaves the defendant with no charge standing against him. (Crim. Prac. Act, § 359.) To be sure he may be held to answer a new information (Criminal Practice Act, section 360), if there is reasonable ground to believe that he can be convicted of any offense. But this simply puts him about where he would be if committed by a magistrate on preliminary examination, if there was probable cause to believe that he was guilty of any criminal offense. (Crim. Prac. Act, § 96.) I add these remarks in view of a possible application of the decision in this case to a construction of subdivision 2, section 396, Criminal Practice Act, which provides for an appeal by the state “upon an order of the court arresting the judgment.” Regarding the substance of things, such an order is, in its nature and results, a judgment for defendant. It is a denying a judgment to the state, and a discharge and acquittal of defendant from any possible consequences that threatened to flow from the information. I am therefore of opinion that nothing said in this opinion looks to a denial of the right of the state to appeal under the provisions of subdivision 2, section 396, Criminal Practice Act.

In this connection, and in consideration of the matter to which I shall now call attention, I think that it is proper that we express our view as to the sufficiency of the information. The ruling of the court in granting the new trial was made in such a peculiar manner that the state’s attorneys have construed it to be an attack upon the information, and there is reason to believe from the record that the district court would hold the information to be bad if that matter were regularly before it for a decision. The sufficiency of the information is not a matter to raise upon a motion for a new trial (Criminal Practice Act, section 354), but it may be raised on a motion in arrest of judgment if the defects exist which are set forth in section 357, Criminal Practice Act. Insufficiency of the infor- ' mation was not specified by defendant as one of the grounds of the motion for a new trial, nor was that matter before the court by virtue of that motion. (Crim. Prac. Act, § 354.) But no motion of any kind is necessary that the court may arrest the judgment. The court may do this without motion. (Crim. Prac. Act, § 358.)

Now, on the motion for a new trial of this case, we.find the court going outside of that motion and entering the domain of the motion in arrest of the judgment, which domain it may enter without being moved to do so by either party. (Crim. Prac. Act, § 358.) Having entered this field, we find, by the record, that the judge strikes nearly a direct blow at the informalion. It is fairly to be gathered from his ruling that he considers the information insufficient to sustain a judgment on the verdict. It is true that he makes this a ground for granting a new trial, as he ought not, and he does not make it a ground for an arrest of judgment, as he should have done if he held that the information was objectionable under section 357. The ruling was not'one that was attentive to the practice, and it did not distinguish the nature of the matter which the court undertook to handle. It threw the case into some confusion, and has left the counsel for the state in uncertainty as to how they will stand as to their information. For the state’s attorneys come into this court in the belief that the information was attacked, and they devote most qí their argument to its defense. This case is now to go back for trial. It will stand upon an information which has been impugned in the opinion of the district court. The state’s attorneys may, therefore, naturally be shaken in their confidence in the sufficiency of their pleading. Therefore, although, in fact and effect, the district court did not arrest the judgment, and therefore did not destroy the information, and hence the information is not before us for review, yet as all subsequent proceedings must rest upon this information, which, in the opinion of the court which is to try the case, is, if not decided to be bad, at least much discredited, we deem it proper and fair to both court and counsel to express our views as to the sufficiency of this pleading.

The counsel for the respondent does not show in his brief wherein the information was ever claimed to be insufficient, nor does the ruling of the court enlighten us upon that point. The judge says, simply, that he believes the information is insufficient to sustain a judgment of murder in the second degree. But, upon the argument of the case, we were told that the information was faulty in its conclusion. If we examine the information without regard to the concluding sentence, there is no contention but it charges murder in the first degree. It describes the acts done and the killing, and alleges that those acts were done feloniously, unlawfully, premeditatedly,and with malice aforethought. An information charging murder in the first degree is a good information to sustain a judgment on a verdict of murder in the second degree. (Territory v. Stears, 2 Mont. 324.) Therefore the information is sufficient to sustain a judgment for murder in the second degree, unless the objection which counsel urged to the conclusion is good. That conclusion, which is in a sentence by itself at the end of the indictment, is as follows:

• “And so the county attorney aforesaid, upon his oath aforesaid, does give the court to understand and be informed that the said Charles Northrup at the time and place aforesaid, and in the manner aforesaid, did commit the crime of deliberate, premeditated murder, contrary to the form of the statutes in such eases made and provided, aud against' the peace and dignity of the state of Montana. Allan R. Joy, county attorney of Park county, state of Montana.”

The argument upon this matter was very brief, aud about all that was claimed was that the language of this conclusion stated simply that the defendant had committed murder, and did not state the acts which he did, or that he did them of malice aforethought. But the acts constituting the offense aud the manner of performing them, and all the allegations of premeditation and malice aforethought, had been fully and unobjectionably set forth in the preceding portion of the information, and the portion of this information which is now criticised is a mere conclusion resulting from the previous allegations. The conclusion states that “at the time and place aforesaid and in the manner aforesaid.” This point was dir reetly decided in the case of Territory v. Young, 5 Mont. 244, in which Chief Justice Wade says:

“ These words are the mere conclusion drawn from the preceding averments. If the averments are bad, the conclusion will not aid them; if they are good, and sufficiently describe the crime as the law requires, by proper averments, the formal concluding words are immaterial. At common law the concluding words, formally charging the defendant with murder, were necessary in order to distinguish an indictment for murder from an indictment for manslaughter. If the term ‘ murder’ were omitted from the conclusion of the indictment the defendant could only be convicted of manslaughter., (3 Chitty’s Criminal Law, 737; Touts v. State, 8 Ohio St. 119, 120.)

“The reasons for the technical conclusion of indictments for murder at common law all disappear under statutes defining the degrees of the crime, and providing that the jury shall designate the degree in their verdict. And so we are compelled to say that this indictment is clearly within the Stears and McAndrews decisions, and those decisions we cannot disturb. This conclusion seems irresistible when we remember opr statute, which provides that no indictment shall be quashed or set aside for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged, or for any defect or imperfection which does not tend to prejudice the substantial rights of the defendant on the merits.”

The statutes to which the above opinion refers are now section 171, subdivisions fourth, sixth, and seventh, Criminal Practice Act. The information in the case at bar clearly contains sufficient matter to indicate the crime and the person charged, and the objection which is now raised to it is not as to matter which tended to the prejudice of substantial rights of the defendant upon the merits. We are therefore of the opinion that the objection to the sufficiency of the information is not well founded.

The contention at the bar has been very earnest and vigorous on both sides. I have not, in this opinion, quoted or analyzed all the authorities which the zeal and learning of counsel have collected in their briefs. I have cited the general principles of the cases, and have then thought that the determination of this case depends upon an interpretation of our chapter 15, Criminal Practice, in the light of the legal principles estal>lished by the decisions. (See cases cited in the briefs of counsel.)

It is ordered that the appeal be dismissed.

Pemberton, C. J., concurs.