State v. McClelland

*669 Morris, Ch. J. This is an appeal from a judgment and sentence entered pursuant to the verdict of a jury finding the defendant guilty of rape in the first degree. The verdict was returned February 27, 1942. Upon petition of the defendant the trial court deferred passing of sentence until March 24, 1942. On that date the court pronounced judgment against the defendant and passed sentence upon him. Written judgment was signed by the court and filed with the clerk on that day. At the request of counsel for defendant the court ordered the time with *670 in which a motion for a new trial might be made extended for a period of sixty days. On May 23, 1942, the court made an order, pursuant to the application of counsel for the defendant and with the consent of counsel for the state, extending the time for making a motion for a new trial and for filing notice of newly discovered evidence and serving affidavits pertaining thereto to the 8th day of June, 1942. On May 27, 1942, the court upon application of defendant’s counsel and after a telephone conference with the Attorney General who had charge of the prosecution, made another order extending the time for making a motion for a new trial to the loth day of July, 1942. Certain affidavits in connection with an application for a new trial on the ground of newly discovered evidence were filed with the clerk of the district court on July 6, 1942. The motion for a new trial based upon these affidavits was noticed for hearing on July 14, 1942. The affidavits were sworn to at various times from March 19 to May 23rd, 1942. On July 6, 1942, the defendant filed in the office of the clerk of the district court a notice of motion for a new trial, motion, specifications of error and affidavits in support of the motion. On July 9, 1942, these instruments were served on counsel for the state. The notice fixed the time for hearing of the motion for July 14, 1942 at 10 o’clock A. M. at the courthouse in Mandan. At that time the defendant appeared in person and by counsel and the state was represented by the attorney general and his assistant. Counsel for the state objected to the motion for new trial on the ground that the court had no jurisdiction to consider the same because the motion was made too late for various reasons that were set out at length in written objections. The court denied the motion on the following grounds: “1. That the said motion was made too late and after the statutory time for making such motion had expired and elapsed. “2. That on the merits no sufficient grounds have been shown by the defendant to grant a new trial of this case.” Defendant’s notice of appeal from the order denying the motion for a new trial was served on. counsel for the state on October 7, 1942 and *671 filed in the office of the clerk of court on the same day. It was filed in the supreme court on October 10, 1942. A notice of appeal from the judgment and sentence was served on counsel for the state on March 24, 1942, and filed in the supreme court, June 17, 1942. The motion for new trial was made upon various grounds consisting of insufficiency of the evidence, newly discovered evidence and errors of law occurring at the trial which are pointed out in specifications covering the admission of testimony and failure to give a requested instruction. Affidavits and counteraffidavits in connection with the newly discovered evidence are presented in the record. The state contends upon this appeal as it did before the trial court that the motion for a new trial came too late and that the trial court was wholly without jurisdiction to consider it. Section 10,917, N. D. Comp. Laws 1913, states: “When a verdict has been rendered against the defendant, the court in which the trial was had may, upon his application, grant a new trial in the following cases only:” The first four paragraphs have no application in this case. “5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, or has done or allowed any act in the action prejudicial to the substantial rights of the defendant. “6. When the verdict is contrary to law or clearly against the evidence. “7. When new evidence is discovered material to the defense, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.” Section 10,920, N. D. Comp. Laws 1913, provides: “The application for a new trial, except in case of a sentence of death, must be made before the time for an appeal has elapsed.” In a criminal action, an appeal may be taken from a judgment within three months after its rendition and from an order within sixty days after it is made. Chapter 217, N. D. Session Laws 1927. The judgment in this case was entered March 24, 1942. The time for appeal extended for three months from that date. The time for making an application for a new trial was limited to a period of three months from *672 that date. An appeal from the judgment was taken by serving and filing a notice of appeal within proper time. The motion for a new trial was not brought on for hearing until in July. This court has passed on the question under consideration in several cases. In State v. Hagen, 54 ND 136, 208 NW 947, it is held that a motion for a new trial and an appeal from a judgment are separate remedies and that the taking of an appeal does not extend the time within which a motion for new trial must be made. This rule was followed in State v. Gibson, 69 ND 70, 284 NW 209. Thus, it is clear that the appeal from the judgment did not extend the time for making a motion for a new trial beyond three months from the rendition of the judgment. Section 10,920 is mandatory in its language to the effect that an application for a new trial must be made before the time for an appeal has elapsed. The right to a new trial can only be conferred by statute. It can be had only upon grounds which the law grants and upon application made within the time specified. AVheii that time expires the court is without authority to entertain or grant such a motion. State v. Hagen, and State v. Gibson, supra; State v. Krueger, 57 ND 636, 223 NW 583. In the later, case the defendant who was convicted of the crime of rape moved for a new trial on the ground of newly discovered evidence. The motion was made after the time for appeal had expired. The trial court held that it had no jurisdiction to hear and grant the motion. This court affirmed that decision. The trial court had no jurisdiction to entertain or grant the defendant’s motion. The situation is therefore the same as if no motion for a new trial had been made. The supreme court of Missouri had before it a similar situation in State v. Brown, 339 Mo 1014, 98 SW(2d) 777, wherein it is said: “The Missouri decisions,. above referred to, are unanimous in holding that a motion for new trial, filed after the statutory period for its filing had expired, is to be treated as a nullity. If so, the situation is the same as if no motion had been filed. The conclusion then is inescapable that the state cannot by stipulation have this court consider a motion for new trial to have been filed, when in fact none was filed. If the state could so stipulate and have this court review the rulings of the trial court, then the matter of filing motions for new trial would no longer be controlled by our statute. The statute could then be set aside by mutual consent to suit the convenience of the par *673 ties. We must not lose sight of the fact that we are all governed by the same law. That law is just as binding upon this court as it is upon the appellant in this case.” In Webster v. State, 209 Ind 274, 198 NE 781, the trial court overruled defendant’s motion for a new trial that was made after the time prescribed by statute had expired. On appeal it was urged that the supreme court should nevertheless consider the case on its merits. In discussing this contention it was said: “The attorneys for the appellant strenuously and ably insist that this court should disregard the time limit as prescribed by the statute in filing a motion for a new trial and consider the appeal on its merits. At common law there was no right to file a motion for a new trial, and, as it is a right conferred by statute, -one who would avail himself of the right must bring himself within it. As said in the case of Ward v. State (1909) 171 Ind 565, 86 NE 994, 995: ‘In most, if not all, enlightened states, a desire to secure the fullest attainable justice has prompted provisions for a new trial when substantial and prejudicial error in the former trial has been seasonably shown by the defendant. The interests of the accused and the welfare of the state demand promptness in the hearing and final disposition of criminal charges. Such cases must at some time be effectually and finally terminated in the courts, and thereafter remain at rest.’ ” This court has no appellate jurisdiction other than that prescribed by statute. Section 109 of the North Dakota Constitution provides that: “AVrits of error and appeals may be allowed from the decisions of the district courts to the supreme court under such regulations as may be prescribed by law.” Thus it will be seen that no right of appeal from the district courts is conferred by the Constitution. That right is left to statutory provisions and must be exercised in accordance therewith. An appeal, therefore, embraces only that which is contemplated by the law enacted by the legislature and must be taken within the time that the legislature has seen fit to provide. Stimson v. Stimson, 30 ND 78, 152 NW 132; State v. Hueremann, 37 SD 649, 159 NW 398. The defendant’s appeal from the judgment was perfected in time and includes certain specifications of error upon which reversal of the iude *674 ment is urged. An appeal from a judgment only brings to this court for review errors of law committed by the trial court and appearing in the record of the action which have been preserved and presented in the manner prescribed by statute. Sufficiency of the evidence to sustain the verdict, not challenged either by motion for a new trial or for an advised verdict, cannot be considered on an appeal from the judgment alone. State v. Glass, 29 ND 620, 151 NW 229; State v. Fahn, 53 ND 203, 205 NW 67; State v. Johnson, 68 ND 236, 278 NW 241; State v. Mostad, 70 ND 73, 291 NW 910. In this case the sufficiency of the evidence not having been challenged in the court below is not properly before us on appeal. The defendant does not claim that any of the instructions given by the trial court were erroneous. He does specify, however, that the court erred in failing to give an instruction that he requested to be given to the jury. No exceptions to the trial court’s instructions were taken in the court below as 'required by statute. In order to secure a review of instructions to the jury either on appeal or on motion for a new trial exceptions must be taken in the manner prescribed by §§ 10,824 and. 10,825, N. D. Comp. Laws 1913. This question was considered at.length in State v. Shoars, 59 ND 67, 228 NW 413, wherein it is said that: “It is clear from these sections that it is the intent of the law that all objections to the instructions to the jury by the trial court in .a criminal case must be preserved by exceptions or they are waived. If the instructions are written and the trial judge submits them to counsel with a reasonable time for examination, and counsel does not except to the instructions or any part thereof, all objections are waived. If the trial judge does not submit the instructions to the counsel, exceptions may be filed any time within twenty days from the filing of the instructions in the office of the clerk of the district court.” The rule in the Shoars Case has since been followed in State v. Balliet, 61 ND 703, 240 NW 604; State v. Bossart, 61 ND 708, 240 NW 606; and State v. Youman, 66 ND 204, 263 NW 477. The statutes and the authorities were again thoroughly examined and reviewed in State v. Gibson, 69 ND 70, 284 NW 209, wherein we said: “The Shoars Case, 59 ND 67, 228 NW 413, was decided in January, 1930. Four legislative, assemblies have since, convened and, there has been no attempt to- ” ’ *675 change the rule that was announced in that decision. That rule is in harmony with the rule prevailing in practically all other jurisdictions. To attempt to depart from or change it by judicial interpretation would be, in effect, to enter into the field of legislation.” The appeal from the judgment brings before us questions of the admission or rejection of evidence raised at the trial and specified.as error on appeal. The defendant so specifies the overriding of objections to the admission -of certain testimony of the witness, Anna Fluvog, against whom the defendant is alleged to have committed the crime charged in the information. Defendant’s counsel cross-examined her with regard to a charge of rape previously brought against one Don Millard. She testified that he was arrested upon a complaint made by her father and bound over to district court. Then followed the ensuing cross-examination: “Q. Did you have any physical examination after that? “A. Yes, I did. “Q. By a doctor ? “A. Yes, sir. “Q. And the doctor told that you never had intercourse with anybody up to that time ? “A. Yes, he did. “Q. And testified and certified to the court that you never had intercourse with anybody up to that time. Is that not true ? “A. Yes.” On redirect examination she was permitted to explain her testimony upon cross-examination as follows: “A. Well, I thought he asked me if I had sexual intercourse and the doctor said I never did have before I had that sexual intercourse with Don Millard.” Defendant’s counsel contends that by the cross-examination above quoted the witness testified that the doctor who examined her certified that she had never had intercourse with anyone up to the time of the examination by the doctor which would tend to establish that her claim of being raped by Don Millard was false. Thus, her credibility would be impeached. It is asserted that her testimony, on redirect examination is not the explanation of a confused witness but a complete change in her story. The state, on the other hand, contends *676 tliat the cross-examination is ambiguous and that the witness was entitled to explain it. A careful reading of this testimony discloses that the witness could readily have been confused by the language used in the questions of defendant’s coun?fi. He twice used the phrase “up to that time” which from the context of the examination could mean either the time of the alleged rape or the time of the examination by the doctor. It was entirely proper for the court to permit her to explain which she understood the questions to mean. We find no error in the court’s ruling with respect thereto. The trial court correctly determined that he had no jurisdiction to entertain the motion for new trial. He also considered the merits of the grounds urged and set forth in a comprehensive memorandum opinion his reasons for reaching the conclusion that the grounds for the motion were without merit. We have not confined our examination of the record to procedural matters and the application of statutes with reference thereto. We have explored the record thoroughly. The defendant has had a fair trial. The jury was not misinstructed. We have read the affidavits and the counteraffidavits submitted in connection with the motion for new trial on the ground of newly discovered evidence. The record does not indicate that as a matter of justice and aside from the law as to proper practice that the case should be tried over again. We have also examined the judgment roll and the record in so far as it is properly before us on this appeal. We have discovered no error therein and none has been pointed out to us. The judgment appealed from must be and is affirmed. Burr, Nuessle, Burke, and Christianson, JJ., concur.