
    No. 699
    DAUGHERTY v. STATE
    Ohio Appeals, 5th Dist., Licking- Co.
    Decided May 25, 1925
    333. CRIMINAL LAW—Motion for a new trial does not suspend operation of final judgment, and at discretion of trial judge he may pronounce sentence during pending of such a motion.
    Attorneys—Jones, Jones & Overturf, for Daugherty; H. C. Ashcraft, Pros. Atty., for State; all of Newark.
   Harry Daugherty was tried in the Licking-Common Pleas and found guilty of highway robbery. The following day his consel filed a motion for a new trial and the court announced it would be heard at a time agreeable to both the State and counsel for Daugherty, who was then sentenced to the Ohio Penitentiary.

Afterwards, on Feb. 25, 1925 the court overruled the motion, Daugherty’s counsel offering-no affidavits of newly discovered evidence. Error was prosecuted and it was contended that the court jn effect denied Daugherty the right to have his motion for a new trial properly presented to the court, that sentence should not have been passed before the motion had been argued before the court. It was claimed the real judgment in a criminal case was the judgment of the court as represented by the sentence, the verdict being nothing more than a finding of fact. The court of appeals held:

1. The question that is presented is, has plaintiff in error been so prejudiced by the failure or refusal of the trial judge to pass upon his motion for a new trial, before sentence, as to require and authorize a judgment of reversal by a reviewing court?

2. The motion for a new trial is to be acted upon by the sound discretion of the trial judge, its purpose being to give the court an opportunity to correct errors which may have been made, thus saving time and expense of an appeal or error proceedings.

3. Piling of a motion for a new trial does not, as a matter of law, suspend final judgment or sentence until after the trial judge overrules it.-

4. A motion for a new trial does not prevent a trial judge from passing sentence while motion is pending and before it is overruled.

5. Judgment cannot be reversed on the ground that the sentence was passed pending motion for a new trial. Upon such a record it must be presumed that the motion for a new trial was abandoned before judgment. Young v. State, 6 Ohio 435-437. Judgment affirmed.  