Jackson v. State

Marshall, J.

This case was before this court on a writ of error to review the judgment of the circuit court, and was decided October^,1S95, the judgment being affirmed. After such affirmance, a motion for a new trial was seasonably made, based on newly-discovered evidence, under sec. 4719, R. S., which provides that “ the circuit court may, at the term in'which the trial of any indictment or information gba.11 be had, or within one year thereafter, and in either case before or after judgment, on the petition or motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court may direct.” The motion for a new trial was denied, and the order of the trial court in that regard is here for a review at this time, if a writ of error may properly be had to bring such a matter before the court.

By the organic law of the territory at the time of the adoption of the state constitution, a writ of error was allowed only from final judgments or orders in the nature of final judgments (Hill v. Bloomer, 1 Pin. 283); and this right was preserved and secured by art. I, sec. 21, of the constitution, which provides as follows, “Writs of error shall never be prohibited by law.” As said by Mr. Justice Lyon in Buttrick v. Roy, 72 Wis. 164, in effect, this constitutional provision renders the writ inviolate, as it existed when the constitution was adopted, and at that time its scope and function were to correct some supposed mistake in the proceedings or judgment of the court. Hence, it lies only after judgment in an action at law in a court of record, or after an order in the nature of a final judgment, to correct some supposed mistake in the proceedings in respect to such judgment or order. Such is the measure of the constitutional right to the writ, and sec. 3043 is merely declaratory of the constitutional right, neither extending nor attempting to restrict it. Sec. 4724, R. S., provides that writs of error in criminal cases may issue in the manner and within the time allowed in civil actions, and sec. 3043, that writs of error may issue to review final judgments in actions tried by jury; the proceedings and judgment to be in accordance with the course of the common law and the rules and practice of the supreme court. This statutory provision, in connection with art. 1, sec. 21, of the constitution, has been repeatedly considered by this court in cases, from first to last, covering nearly half a century, and the conclusion promulgated soon after the adoption of the constitution has been since reiterated, over and over again, that a writ of error lies only in case of a final judgment or an order in the nature of a final judgment given in a court of record proceeding according to the course of the common law. Hence, an extended re-discussion of the subject at this time cannot serve any valuable purpose. In Crocker v. State, 60 Wis. 553, in an opinion by Mr. Justice Cassoday, the authorities in this and other states are collated; and the conclusion there reached, as explained in Buttrick v. Roy, 72 Wis. 165, and followed in State ex rel. Larkin v. Ryan, 70 Wis. 676, State v. Brownell, 80 Wis. 563, and State ex rel. McCaslin v. Smith, 65 Wis. 93, leaves very little, if anything, that can profitably be said on the subject.

However much the ends of justice may appear to demand a review of the decision of the trial court l’efusing to exercise the discretionary power granted by sec. 4719, R. S., in favor of the plaintiff in error, the settled law on the subject forbids this court from doing so, though the peculiar circumstances disclosed by the record, and the able presentation of the matter both orally and in the printed briefs of counsel, have led to such careful consideration of the jurisdiction of this court in the premises as the apparent exigencies of the case required, in view of the prior adjudications in respect to the general principles involved. We must hold that an order denying a motion for a new trial, under sec. 4719, is not a final judgment or an order in the nature of a final judgment. Hence, the writ of error was improvidently issued and must be dismissed.

By the Court.— Ordered accordingly.