Page:North Dakota Reports (vol. 48).pdf/597

 in the minds of reasonable men a reasonable doubt as to defendant’s guilt—then he should have granted a new trial. Or to state the concrete proposition as it appears in this case, it is our opinion that if the trial court was of the belief that the defendant would not have been convicted except for the testimony given by Mrs. Manning, then he should have granted the motion for a new trial.

The language utilized by the trial judge in the record transmitted to us on this appeal is such that we have some difficulty in understanding exactly what conclusions he did reach so far as the facts are concerned. And it is his judgment, his conclusions as to what the facts are which in the first instance largely, if not wholly, determine whether a new trial should or should not be had. The discretionary power with which trial courts are vested in ruling on motions for a new trial on the ground of newly discovered evidence is primarily applicable to a determination of the facts. The facts being determined, the applicable legal principles readily determine whether a new trial should or should not be had.

In the circumstances it is our opinion that the order denying the motion for a new trial should be set aside, and the cause remanded with directions that the trial court hear such motion anew, and, by application of the principles enunciated in this opinion, determine whether a new trial should or should not be had.

It is so ordered.

and, JJ., concur.

, C. J. (concurring specially). It is my opinion that the judgment should be reversed and a new trial granted.

, J. (concurring in part). The complaint charges that on February 26, 1918, at Sarles, N. D., defendant committed rape on Florence Day. She was then a full-grown woman nearing sweet 16. He was a bald-headed man in the fifties. He was convicted, and the ‘sentence was 2 1/2 years in the pen. The claim is that at midday he entered the Day kitchen, put his hand on her shoulders, laid her on the floor, and had with her a sexual mating. There is no claim of any fear, intimidation, or resistance.

Defendant moves for a new trial because of errors of law, surprise, and newly discovered evidence. In denying the motion the trial