
    Nos. 9723, 9894.
    THE STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM NICKS, Defendant and Appellant.
    332 Pac. (2d) 906.
    Submitted June 6, 1958.
    Decided Nov. 26, 1958.
    
      Hansen, Culver & Jones, Baker, Al Hansen, argued orally, for appellant.
    
      Forrest H. Anderson, Atty. Gen., Robert J. Emmons, Asst. Atty. Gen., Gene Huntley, County Atty., Baker, Gene Huntley, County Atty., and Robert J. Emmons, Asst. Atty. Gen., argued orally, for respondent.
   MR. JUSTICE ANGSTMAN:

Defendant was convicted of tbe crime of committing lewd and lascivious acts upon a minor child. His motion for new trial was denied after this court ruled that a motion for new trial could be filed and heard under recanting testimony developed after the trial. State v. Nicks, 131 Mont. 567, 312 Pac. (2d) 519. He has appealed from the order denying the motion.

Since this court has remanded the cause for retrial upon other grounds in an opinion this day filed, 332 Pac. (2d) 904, the propriety of the ruling on the motion for new trial because of the recanting testimony becomes immaterial and this appeal is accordingly dismissed.

MR. JUSTICES ADAIR and BOTTOMLY, concur.

MR. CHIEF JUSTICE HARRISON, did not participate in this opinion.

MR. JUSTICE CASTLES, dissents.  