Page:North Dakota Reports (vol. 48).pdf/590

 pany without incurring any risk of loss. “He who takes the benefit must bear the burden.” Code (Comp. Laws) § 7255.

STATE OF NORTH DAKOTA, Respondent, v. HIRAM J. STEPP, Appellant.

Criminal law—appointment of special counsel to assist prosecution held not error.

1. For reasons stated in the opinion the trial court did not err in making an order appointing special counsel to assist the state’s attorney in the prosecution of this case.

Criminal law—plea of not guilty held not withdrawn by subseuentsubsequent [sic] motion to quash information.

2. Where a defendant enters a plea of not guilty to a criminal information the issue framed by such plea remains until disposed of in some proper manner. Such plea is not deemed withdrawn because the defendant subsequently moves to quash the information on the ground that it does not state facts sufficient to constitute a public offense.

Criminal law—grant of new trial for newly discovered evidence in discretion of trial court.

3. Whether a new trial shall be granted on the ground of newly discovered evidence is primarily a question for the trial court. The function of the appellate court is merely to review the ruling of the trial court to ascertain whether in ruling as it did the trial court abused the sound, judicial discretion with which it is vested. In the instant case the appellate court, for reasons stated in the opinion, is unable to ascertain, upon the record before it, what the trial court actually found upon the controlling facts, and for that reason the order denying a new trial is set aside and the cause remanded with directions that the trial court hear and determine anew the motion for a new trial.

Appeal from the District Court of Ramsey County, Buttz, J.