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[60 Mont. 441.]

impeachment enunciated in section 8024. The court properly excluded the evidence of the conviction of the witness of a misdemeanor.

Respondent urges misconduct of the jury as ground for a [2] new trial, and the record contains affidavits of some of the jurymen which indicate prejudice against the defendant by which he was denied a fair trial; also the affidavits of third persons tending to substantiate the same contention. The principal third party affidavits are made by detectives from the Burns Detective Agency, and assume to detail statements made by certain of the jurymen after the trial. A portion of the affidavit of E. A. Cooper, Burns detective, is quoted as follows, and is a fair statement, as showing the nature of the substance of the affidavits pertaining to statements of other jurymen : "That the said F. L. Champ then stated that he did not know Stein personally, and had never had any business dealings with him, but that he had heard that Mr. Stein was in the habit of charging an exorbitant rate of interest on money loaned, and that about a year ago a friend of his, a railroad man, had borrowed eight dollars from Stein on the first of the month leaving his watch as security, and that on the twentieth of the month, when he went to redeem it, he was charged two dollars interest, making a total of ten dollars, and that ever since then, he, Mr. Champ, had had no use for Mr. Stein, and that, further, he had always hated a Jew; that he was one of the jurors that recently convicted Stein on a bootlegging charge here, and that he wanted the court to allow the jury to impose sentence giving Mr. Stein the extreme penalty of the law; that Charles Marsant, the state's witness in the case, was nothing but a drunken sot, unworthy of belief, but that in his opinion Stein was guilty of the charge, and that he hoped he would get the limit of the law.

"That affiant then stated to the said Champ, 'It is a fact then that for the past year, or ever since your friend was charged two dollars interest on that eight dollar loan on his watch by Mr. Stein, you have never had any use for Stein,'

[60 Mont. 441.]

and that Champ then replied, 'I have never had any use for Stein since, and I will help you all I can to get him,' and that the said Champ further stated that, if he could find any railroad men who had borrowed money from Stein, he would get their names for affiant."

D. F. Simmons, also a Burns detective, makes affidavit in corroboration of Cooper.

This court has said the object to be attained is controlling in [3] determining the character of pleadings, motions and other papers filed in an action (Currey v. Butte Elec. Ry. Co., ante, p. 146, 199 Pac. 243), and, where the object sought to be attained is the impeachment of their verdict, jurymen will not be heard to assail the integrity of their own verdict by affidavit or otherwise (Currey v. Butte Elec. Ry. Co., supra). What a juror cannot do directly he is not permitted to do indirectly. Referring to a similar condition, in which the affidavit of a third person setting forth statements made by a juror after the trial was before the supreme court of California, that court said: "This affidavit was properly refused admission in evidence. While it is not in terms an affidavit by a juror impeaching his own verdict, it is an affidavit of admissions made by a juror to the same effect. If the juror himself would not have been permitted to make affidavit directly to these facts, clearly the affidavit by another of his declarations and admissions, offered for the same purpose, would be equally inadmissible. What the juror could not do directly could not thus indirectly be effectuated. However the rule may be in other states, it is settled in this beyond controversy that a juror may impeach his own verdict upon no other ground than that designated by the Code." (Siemsen v. Oakland etc., 134 Cal. 494, 66 Pac. 672.) This statement of the rule meets with our approval, and hence the lower court was not justified in granting the new trial upon the ground of misconduct of the jury.

Respondent further undertakes to assert his right to a new [4] trial upon the ground of newly discovered evidence, but

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[60 Mont. 441.]

his position is untenable. All of the proposed newly discovered evidence is impeaching in its character, and cumulative. The defendant produced upon the trial witnesses to impeach the state's witness, Marsant, and all of the evidence claimed as newly discovered, if produced, could have no other possible effect than to put in question further the integrity of Marsant, and to that extent would be cumulative. Again, however, this court has held that newly discovered evidence which is only for the purpose of impeachment is not sufficient, as a general rule, to warrant the granting of a new trial. (State v. Belland, 59 Mont. 540, 197 Pac. 841; State v. Matkins, 45 Mont. 58, 121 Pac. 881.) Assuming that the respondent could produce upon another trial all of his proposed newly discovered evidence, it could tend to but affect further the credibility of the state's witness Marsant and state's witness Jarman, and is therefore insufficient as a basis for a new trial. We think the lower court was in error in granting the new trial upon this ground.

We have examined the entire record herein with a view of [5] determining whether the action of the trial court could be sustained upon any ground, and are unable to find any theory upon which it can be justified. This court is always more reluctant to set aside the order of the court below in granting a new trial than in refusing the same (Gibson v. Morris State Bank, 49 Mont. 60-71, 140 Pac. 76), and yet when the motion is based entirely upon documentary evidence, as in this case, the ultimate fact as to whether or not a new trial should be granted must be determined by the court below from the dead printed record before it, under the same principle as this court reviews the case on appeal, and the fact that he may have observed the demeanor of the witnesses upon the stand is of no assistance to it in determining the merits of the motion; and upon the same principle this court will determine the propriety of the action of the lower court, and upon the same record which was before the court below.

We are unable to find substantial merit in any of the contentions of the respondent, nor does the record disclose any ground upon which the order of the court below can be sustained. We therefore recommend that the order of the trial court in granting the motion for a new trial be reversed, and the cause remanded to the district court of Custer county, with directions to enforce judgment upon the verdict of conviction.

PER CURIAM: For the reasons given in the foregoing opinion, it is ordered that the order of the lower court granting a new trial be reversed, and the cause remanded to the district court of Custer county, with directions to enforce judgment upon the verdict of conviction.

Rehearing denied September 26, 1921.


(Submitted June 6, 1921. Decided June 27, 1921.)

[199 Pac. 719.]

Cities and Towns-Police Courts-Ordinances-Criminal Prosecutions-Right of Appeal.

Appeal Lies Only When Granted by Statute.

1. An appeal lies only when authorized by statute.

Cities and Towns-Police Courts-Criminal Prosecutions Under Ordinances -Appeal.

2. Defendant, charged with wrongfully obstructing an alley, was proceeded against under the statute governing criminal procedure in police courts (Rev. Codes, secs. 9584-9629), convicted and appealed to the district court, where the complaint was dismissed. Held, on appeal by the city that, the statute not granting the right of appeal to cities in criminal causes tried in justice or police courts, the appeal did not lie.

Appeal from District Court, Custer County; Daniel L. O'Hern, Judge.

[60 Mont. 451.]

J. G. DRUM was convicted in the police court of violating an ordinance of Miles City, and appealed to the district court, where the complaint was dismissed. The city appeals. Dismissed.

Cause submitted on briefs of Counsel.

Mr. S. D. McKinnon, for Appellant.

Mr. P. F. Leonard, for Respondent.

MR. COMMISSIONER SPENCER prepared the opinion for the court.

By a complaint filed in the police court of the city of Miles City, Montana, the defendant was charged with "unlawfully, wrongfully, willfully, and unnecessarily" obstructing a certain alley in Miles City, in violation of the provisions of a certain ordinance "concerning nuisances." Defendant was arrested upon a warrant issued upon said complaint, tried and convicted in the police court, and a fine imposed. Defendant appealed to the district court of Custer county. At the trial in the district court, plaintiff, city of Miles City, offered in evidence the ordinance "concerning nuisances" above referred to, which was excluded by the court upon the ground that the same was invalid, whereupon, the plaintiff declining to proceed further with the trial, upon motion of defendant, the court dismissed the complaint, and ordered the defendant discharged. Judgment was made and entered accordingly. The plaintiff city of Miles City has attempted to appeal from the judgment. Defendant has made motion to dismiss the appeal for lack of jurisdiction in this court.

The proceedings in civil actions, in police courts, are gov[1, 2] erned by the provisions of sections 7092 to 7095, Revised Codes. (Sec. 3302, Rev. Codes.) In criminal actions the provisions of sections 9584 to 9629, Revised Codes, are controlling. (Sec. 3301, Rev. Codes.) In this case appellant made no effort, nor did it pretend, to proceed under the stat

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