Page:Dakota Territory Reports.djvu/470

 A new trial must be ordered whenever it is necessary, as a matter of right. (3 Estees' Pleadings and Forms, p. 754.) It is error to refuse a new trial when justice requires it. (Ross v. Austill, 2 Cal., 183.) Even on principle, there are cases in which a discretionary power might be exercised in favor of defendants, granting them a new trial where they could not strictly claim rights. (1 Bishop Crim. Law, 847.) Humane principles would require that, after a conviction, a prisoner should be indulged with another opportunity to save his life, if anything had, occurred upon the trial which rendered doubtful the justice or legality of his conviction. (Com. v. Green, 17 Mass., 534.) It is discretionary with the courts to grant new trials, where there has been no error on the trial. (Com. v. Green, 17 Mass., 550.)

G. C. Moody, for the Territory.

No copy of the affidavit for a continuance is set out in the printed record, and the substance is given differently in different parts of the record, but at the best the reasons given are clearly insufficient to compel a continuance.

The granting or refusal of the motion was largely in the discretion of the Court, and in this case the record shows the discretion to have been wisely exercised, as there were several witnesses produced to the transaction, and some by defendant in his own behalf. (Wharton's Crim. Law, vol. 3, 3020, &c.)

The Court was the trier and sole judge of the facts upon the challenge of the juror DriscoU, and decided properly.

No objection or suggestion as to the order of challenge was made by the defendant, and it is difficult to see how he could be possibly prejudiced by the neglect to follow the order in any event* The statute is merely directory, (22 N. Y., 150, Sanchez v. People.)

The neglect to read the indictment or to state the plea forms no ground for a new trial. The causes for a new trial are limited by the statute and this is not found among them. (Revised Criminal Code, § 423.)