Page:North Dakota Reports (vol. 48).pdf/591

 Defendant appeals from a judgment and from an order denying a new trial.

Order denying new trial reversed, and cause remanded with directions to hear and determine such motion anew.

G. Grimson, State’s Attorney, Fred J. Traynor, special Ass’t. State’s Attorney, ''Wm. Lemke'', Attorney General, for respondent.

J. F. T. O’Connor and C. F. Peterson, for appellant.

An unofficial member of the bar may not assist in the prosecution for a fee paid by private persons. Beimel v. State, 71 Wis. 444, 37 N. W. 244; Bird v. State, 77 Wis. 276, 45 N. W. 1126. It is the policy of the criminal law that the prosecuting attorney have active superintendence of the management of criminal trials. He should see that it does not degenerate into a private persecution or prosecution. People v. Blackwell, 27 Cal. 66; Hayner v. People, 72 N. E. 782; Comm. v. Knapp, 20 Amer. Dec. 534; Comm. v. Webster, 52 Amer. Dec. 711.

The court erred in not arraigning the defendant, in not giving defendant an opportunity to plea, or enter a plea. § 10746, 1913 N. D. Comp. Laws; State of Oregon v. Walton, 91 Pac. 490, 13 L. R. A. N. S. 811; see note 13 L. R. A. N. S. at p. 812 and cases cited; see note 13 L. R. A. N. S. at p. 813 and cases cited.

It is the function of this court to review the ruling of the trial court on the motion, and to determine whether, in denying a new trial, the trial court abused its discretion, and thereby effected an injustice. State v. Gray, 31 N. D. 67, at p. 81, 153 N. W. 452; Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; State v. Gray, 31 N. D. 67, 153 N. W. 452.

If it is clear that the new evidence would not charige the result the motion should be denied, but if it is doubtful how it would affect the verdict, the motion should be granted. Lindley v. State, 11 Tex. App. 284; State v. Laper, 128 N. W. 476; Aylmer v. Adams, 153 N. W. 422; State v. Fleming, 17 Idaho 471, 106 Pac. 305.

, J. The defendant was convicted of the crime of rape in the first degree in the district court of Ramsey county, on a change of venue from the district court of Cavalier county, and sentenced to 2 1/2 years’ imprisonment in the state’s penitentiary. After sentence had been