State v. Evans

¶1Petition eor Rehearing.

¶2(193 Pac. 927.)

¶3The State, as respondent, files petition for rehearing. Rehearing Denied.

¶4Mr. I. E. Van Winkle, Attorney General, and Mr. G. M. Roberts, District Attorney for Jackson County, for the petition.

¶5Mr. Gus Newbury, contra.

¶6The state has petitioned for a rehearing. It is contended that an order denying a motion for a new trial is not appealable, cannot be assigned as error and cannot be reviewed by this court; and in support of this contention the state cites State v. Pender, 72 Or. 94, 108 (142 Pac. 615), *237and State v. Frasier, 94 Or. 90, 107 (180 Pac. 521, 184 Pac. 848).

¶712. An order denying a motion for a new trial is of course not appealable; for, if reviewable at all, it can only be reviewed by an appeal from the judgment against which the motion was directed. The order denying the motion is reached by appealing from the judgment rendered in the case.

¶8The Code expressly recognizes the right of a disappointed litigant to ask for a new trial, if for any of the reasons specifically enumerated by the statute a substantial right of such litigant has been materially affected; and among the several reasons we find the following:

“Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial”: Section 174, subd. 4, Or. L.

¶9Subdivision 6 of this section authorizes the court to grant a new trial because of an “insufficiency of the evidence to justify the verdict or other decision, or that it is against law.”

¶10Section 174, Or. L., has been brought to the attention of this court many times. The following constitute a considerable number, though not all, of the many precedents in which Section 174 has been noticed: Bowen v. State, 1 Or. 271; State v. Fitzhugh, 2 Or. 227, 236; State v. Wilson, 6 Or. 429; Hallock v. Portland, 8 Or. 29, 30; State v. McDonald, 8 Or. 114, 118; State v. Becker, 12 Or. 318, 319 (7 Pac. 329); Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309); State v. Roberts, 15 Or. 187, 198 (13 Pac. 896); State v. Clements, 15 Or. 237, 243 (14 Pac. 410); Beckman v. Hamlin, 23 Or. 313, 319 (31 Pac. 707); State v. Foot You, 24 Or. 61, 70, 73 (32 Pac. 1031, 33 Pac. 537); *238Elder v. Rourke, 27 Or. 363, 367 (41 Pac. 6); State v. Childers, 32 Or. 119, 128 (49 Pac. 801); State v. Gardner, 33 Or. 149, 152 (54 Pac. 809); McCormick Harvest Machine Co. v. Hovey, 36 Or. 259, 260 (59 Pac. 189); State v. Crockett, 39 Or. 76, 81 (65 Pac. 447); Crossen v. Oliver, 41 Or. 505, 508 (69 Pac. 308); Ruckman v. Ormond, 42 Or. 209, 212 (70 Pac. 707); First Nat. Bank v. McCullough, 50 Or. 508, 515 (93 Pac. 366, 126 Am. St. Rep. 758, 17 L. R. A. (N. S.) 1105); Manning v. Portland Shipbuilding Co., 52 Or. 101, 103 (96 Pac. 545); Fassett v. Boswell, 59 Or. 288, 290 (117 Pac. 302); Stark v. Epler, 59 Or. 262, 268 (117 Pac. 276); Abercrombie v. Heckard, 68 Or. 103, 104 (136 Pac. 875); In re Sneddon, 74 Or. 586, 591 (144 Pac. 676); White v. Geinger, 70 Or. 81, 82 (139 Pac. 572); Wallace v. Portland, R. L. & P. Co., 88 Or. 219, 225 (159 Pac. 974, 170 Pac. 283).

¶1113, 14. Although there may have been an occasional' discordant note among the many reported opinions of the court, yet it must now be accepted as an established rule that the denial of a motion for a new trial cannot be assigned as error, and will not be reviewed on appeal where the motion is based’upon an alleged insufficiency of the evidence. This established rule is simply the natural result of conditions. The fact of the insufficiency of the evidence in any* given case can always be known before the cause is submitted to the jury; and hence the defendant is always afforded an opportunity to question the sufficiency of the evidence,'for he may move for a nonsuit at the close of the plaintiff’s case in chief, or move for a directed verdict when both parties have rested, and in that manner preserve the record, so that upon appeal the question of the sufficiency'of the evidence may be reviewed. .

¶12*239Quite a different situation is created, however, where the motion for a new trial is based upon newly-discovered evidence. In such a case the trial has been completed and the verdict of the jury has been returned; and the very purpose of allowing the motion for a new trial is to afford a remedy for a fact situation which becomes known after verdict, and could not with reasonable diligence have been known before the completion of the trial. The basic difference between the two classes of cases is discussed and recognized in State v. Hill, 39 Or. 90, 96 (65 Pac. 518, 520), for there this court said:

“While the rule is well settled in this state that the action of the trial court on a motion for a new trial on account of any matter within the knowledge of a party prior to the submission of the cause to the jury is not reviewable on appeal, and therefore cannot be assigned as error (citing cases), yet when anything occurs after the cause has been submitted which tends to subvert justice, or shows that a fair trial has not been had, and which by the exercise of reasonable diligence on the part of the defeated party could not have been ascertained or prevented, his affidavit and motion for a new trial, predicated upon such matters, presents a question which the court should weigh and decide with care, and whenever its judgment thereon is manifestly wrong it will be reviewed on appeal.”

¶13The controlling principle which is announced in State v. Hill, 39 Or. 90, 96 (65 Pac. 518), is also recognized and approved in Ruckman v. Ormond, 42 Or. 209, 212 (70 Pac. 707); Goodeve v. Thompson, 68 Or. 411, 417 (136 Pac. 670, 137 Pac. 744); Stern v. Volz, 52 Or. 597, 598 (98 Pac. 148); Colgan v. Farmers & Mechanics’ Bank, 59 Or. 469, 475 (106 Pac. 1134, 114 Pac. 460. 117 Pac. 807). See, also, Tucker v. Flouring Mills Co., 13 Or. 28, 34 (7 Pac. 53); *240Mitchell & Lewis Co. v. Downing, 23 Or. 448, 454 (32 Pac. 394); Barclay v. Oregon-Wash. R. & N. Co., 75 Or. 559, 561 (147 Pac. 541); State v. Mims, 36 Or. 315, 327 (61 Pac. 888); State v. Magers, 36 Or. 38, 53 (58 Pac. 892); State v. Smith, 43 Or. 109, 118 (71 Pac. 973); Territory of Oregon v. Latshaw, 1 Or. 146; Lander v. Miles, 3 Or. 40, 43; State v. Ausplund, 86 Or. 121, 139 (167 Pac. 1019); Portland & O. C. Ry. Co. v. Sanders, 86 Or. 62, 77 (167 Pac. 564); Crossen v. Oliver, 41 Or. 505, 508 (69 Pac. 308); Fassett v. Boswell, 59 Or. 288, 290 (117 Pac. 302); State v. Parr, 54 Or. 316, 324 (103 Pac. 434).

¶1415, 16. Frankness compels the admission that complete harmony does not run throughout all the decisions dealing with Section 174, Or. L., for there are many precedents which contain statements which, standing alone and literally construed, undoubtedly support the position now taken by the state; and, moreover, it must be conceded that there are a few decisions which cannot be logically harmonized with the holding in State v. Hill. However, any broad and comprehensive language found here and there among the many precedents should be read in the light of the facts under discussion; and, when such language is so read, it will appear, in despite of some discordancy, whether real or seeming, that it is now the rule that an order denying a motion for a new trial is assignable as error, and will be reviewed on appeal if the motion is based upon newly discovered evidence. Of' course, the ruling of a trial court will not be disturbed unless there has been an abuse of discretion. A party is entitled to the exercise of a judicial discretion by the trial judge; and, if there has not been the exercise of such a discretion, the party has, to *241that extent, failed to receive that which the law gives him.

¶15In the instant case the motion was based upon a canse materially affecting the substantial right of the' defendant. The trial court was of the opinion that under the provisions of Article VII, Section 3 of the present state Constitution it was without power to disturb the verdict of the jury, and for that reason the Circuit Court declined to examine into the merits of the motion for a new trial. We did not remand the cause with directions to the Circuit Court to pass upon the motion for a new trial; but, since in our view a refusal by the trial court to grant a new trial would in the face of the showing made by the defendant be an abuse of discretion, we directed the granting of a new trial. In other words, even if the trial court had, after an examination of the motion and affidavits filed by the defendant, refused to grant a new trial, we would have held that such refusal was tantamount to the abuse of judicial discretion.

¶16We adhere to our former opinion. The petition for a rehearing is denied.

¶17Reversed and Remanded for New '^rial.

¶18Rehearing Denied.