Opinion
File No. 8055.
Opinion filed December 30, 1937.
1. Criminal Law.
The trial court has no jurisdiction to hear a motion for new trial, which is not based upon newly discovered evidence, after expiration of time fixed by statute. Rev. Code 1919, § 4946.
2. Criminal Law.
The sufficiency of the evidence to support a verdict in a criminal case may not be reviewed upon appeal without a motion for new trial. Rev. Code 1919, § 4946.
3. Criminal Law.
Error may not be predicated upon the court's refusal to advise acquittal in a criminal case.
Appeal from Circuit Court, Dewey County; HON. FRANK GLADSTONE, Judge.
James Mound was convicted of perjury, and he appeals.
Appeal from order denying a motion for new trial dismissed, and conviction affirmed.
George Thwing, of Timber Lake, for Appellant.
Clair Roddewig, Atty. Gen., and Ralph S. Rice, Asst. Atty. Gen., for the State.
Defendant was convicted of the crime of perjury. The appeal is from the judgment and from an order denying a motion for a new trial.
[1, 2] The principal errors assigned deal with the sufficiency of the evidence. It is disclosed by the record that no application was made for a new trial until several months after the entry of judgment, and that the application as made was not based upon newly discovered evidence. The trial court was without jurisdiction to hear such a motion after the expiration of the time fixed by section 4946 of the Revised Code of 1919. State v. Parlin, 64 S.D. 572, 269 N.W. 81; State v. Holborn, 22 S.D. 425, 118 N.W. 704. The sufficiency of the evidence to support a verdict in a criminal case may not be reviewed upon appeal without a motion for a new trial. State v. Kirby, 34 S.D. 281, 148 N.W. 533; City of Sioux Falls v. Smith, 49 S.D. 392, 207 N.W. 160.
Defendant assigns as error the refusal of the court to advise a verdict on the ground of the insufficiency of the evidence. Error may not be predicated upon the refusal of a court to advise acquittal in a criminal case. State v. Keeble, 49 S.D. 456, 207 N.W. 456; State v. Stone, 30 S.D. 23, 137 N.W. 606.
Other errors assigned have been carefully examined, and we have been unable to discover anything prejudicial to the defendant therein.
The appeal from the order denying a motion for a new trial is dismissed, and the judgment of the trial court is affirmed.
All the Judges concur.