The Helena independent., 1893-12-27

constitute . denial OF . speedy trial, al
there was NO unnecessary delay. and there-
fore Northrup 10 rsmandsd for trial.
The opinion of the court in the appeal OF
ths, state from The order granting new
trial IL ono Of general inte1sst. both to law
ysrs and to persons accused of crimes. The
court says: I'VE may start with the set
tied propositihn Of law that the state has
no appeal in criminal cases unless the ssme
10 expressly granted by law. This 10 the
lavsin almost al The courts Of The coun-
try A decision by the United States
supreme ceurt in support Of
this proposition isg given, and
then inquiry 10 directed TO tho third subdl-
vision Of section 396 Of the criminal prao-
tios act Of Montana, which gives an appeal
upon question Of law reserved by the
state" Section $40, of the criminal prac-
sics act, allows an appeal BY the state ''to
any decision Of the court UPON question OF
Law. In admitting or rejecting witnesses or
law not matter of discretion. OF In giving
Or refusing any instructions to the jury,
when the case 10 finally submitted to
them" Thus. the court argues, the mat
tsrs to which the state may except are de-
fined specially and are mot as extensive as
xlHutS u 0XCOpblOu RIV0A W ZIG u0I0uu
ant, for exceptions may be taken by the
defendant to any decision Of tho court upon
matters Of law affecting his substantial
rights" Among the exceptions given to
the state ID not one in terms to an order
granting new trial 10 defendant. III the
Legislature had intended that An exception
could be taken TO saoh an order, as laying q
foundation for appeal on question Of law
reserved" says the court lit would seem,
In view Of tha history OF jurisprudsnos on
thls subject, that ID would have been nat1.
raj that such an order be mentioned spe-
cidcally In section 340."
!. If the state wishes TO have reviewed
question of law II must be done under an
appeal from the judgment" says the court.
An order granting a new trial il not
Judgment" In support of this Is quoted
the opinion OF the supreme court In tho
ease of the territory Of Montana vs.. Laun,
that . motion for new trial Ia matter Of
Judgment. The entiro criminal statutes OF
the state are carefully reviewed by tho
eourt. but no authority. express or implied,
Is found to warrant the state taking an Rp-
peal whore new trial has been granted In
. criminal case. 1t is true" says the
opinion. that this view debars this court
court granting defendants motion for a
new trial. believe it would be we'll if
such review could be upon questions purely
Of law, but that is for the legislature. and
TO their wisdom ! commend the considers
tion Of the subject" On the matter OF the
standing of the information after the
granting OF the new trial the court says:
1.-The order Of tho distrios court did not
expressly set aside the infot nation, nor
was the effect of the order to set 1t aside or
to arrest the judgment. The effect
va. Xas to place the parties in
had been had. Therefore. the order grant
ing new trial left tho case standing for
trial upon the information as filed. The
granting OF new trial materially eifers in
effects and results from sHresting the iudg-
ment. Granting new trial goes back 10
the information, and wipes out the pro-
cesd:nns subsequent to Is. It sots the case
back to the information for new start at
that point. On tho other hand. an arrest of
judgment cuts deeper. It attacks the foun.
dat'on. 1t destroys the information Oh tho
ground that the offense 10 not within the
jurisdiction of the court. or that the facts
stated do not constitute an offense."
An opinion was also rendered affirming
the district court OF silver Bow in the oase
of James p. MsttinEly OF al, plaintiffs and
respondents. va. Leonard Lswisohn, de-
fsudant and appellant. Justice Har-
wood wrote the opinion, the other
ne"os,s %.s OF the a,. court coneurting.
OF the Miners Union lode claim. Some
seven years ago the parties went to law
about 1t, and the Judgment Of the jury in
the lower court was that neither side had
any right to the claim. Lswisohn appealed
and the supreme court ordered a new trial,
On the second trial 1t was decided that
Lswssohn had failed to establish his right
Of possession and title to the ground. On
ths second trial Lewisohn had also tried to
have the other parties ruled out Of the suit
on the ground that their claims for posscs-
sior and title had been adjudioated and de-
termined against them, and that this do
termination had not been vacated on the
sppea! which was p osecutet by Lewisohn
himself. The lower court overruled Lyw
isohn's motion. and this was the main
ground Of appeal. The supreme court su.-
taiDe the lowar conrt