of the people. That the court may, in its discretion, allow such amendment after the time has passed is sustained in Texas (Tores v. State [Tex. Ĉr. App.] 166 S. W. 523), and denied in Missouri (State v. Hunt, 141 Mo. 626 [43 S. W. 389]), and that the court has such discretionary right respecting the amendment of motions for a new trial in civil cases, is affirmed in Georgia, Kentucky, Minnesota, Ohio, South Dakota, Texas, and Canada, and is denied in Iowa and Kansas, and also in Nebraska and Missouri, except as to grounds the movant was unavoidably prevented from including, at the time of filing the motion. See 29 Cyc. p. 959, and notes."

The opinion of respondent in full is too lengthy to warrant us in inserting it here, but it has been duly considered. It concludes as follows:

"The time limit of the statute relates only to motions for new trial made by the convicted person. None of the cases in this State involving the statute touch the right of the trial court to grant a new trial on its own motion. As the statute reads, the trial court may, on its own motion, grant a new trial 'when' (whether before or after the term succeeding the term of conviction) 'it appears to the court that justice has not been done.' If the position of the people on this motion is given full credit, it only establishes that a respondent himself has no right to file a motion out of the statutory time, or out of the statutory time to amend a motion filed in time, by adding a new ground, but it does not follow that the court on its own motion may not, at any time, suggest new ground and act thereon, which practically was what was done in this case."

It is the claim of counsel for the respondent that the statute (section 11963, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 15134), relating to the granting of new trials in criminal cases, is directory, and that a strict observance thereof, so far as time is concerned, is not a condition precedent to the granting of a new trial. The statute is as follows:

"The court in which the trial of any indictment

shall be had, may at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct."

In People v. Marble, 38 Mich. 309, it was said that, at common law, a new trial was not granted in cases of felony, and that the provisions in this State allowing it are purely statutory. In that case the statutory time for making the motion had expired, and this court said:

"In this instance a new trial has been refused by this court on exceptions, and by the circuit court on a motion heretofore made in season. We think the statute fixing the time for such a motion cannot be enlarged in its operation; and, as there is no such remedy at the common law, the party is confined to the statutory remedy, which is now barred by lapse of time."

See, also, Frazer v. Judge of Recorder's Court, 112 Mich. 469 (70 N. W. 1042).

In Hubbard v. State, 72 Neb. 62 (100 N. W. 153, 9 Am. & Eng. Ann. Cas. 1034), it was held that the provisions of the statute limiting the time within which a motion for a new trial, in a criminal case, must be made, are mandatory. The reason for the rule is there stated as follows:

"We find no authority for saying the district court possesses the inherent or common-law power to grant a new trial in a criminal case, outside of statutory authority, as justice may demand. The authorities point rather to the contrary. In Dodge v. People, 4 Neb. 200, it is declared in the headnotes:

"At common law courts had no power to grant new trials in cases of felony, and it was held that they had no power to revise or correct their judgment in such cases.'

"In the opinion it is said by Maxwell, J.:

"At common law the finding of the jury of the guilt of

the accused was conclusive of that fact, and the court possessed no power to set the verdict aside and grant a new trial on the merits, on the motion of the accused, even where the verdict was clearly against the weight of the evidence' (citing Hilliard, New Trials [2d Ed.] 114; Queen v. Bertrand, 1 L. R. P. C. 520; The King v. Fowler, 4 Barn. & Ald. [Eng.] 275; 1 Ch. C. L. 653).

"And continues the author:

""Therefore the utmost caution was required in capital trials, in favor of life, and if an irregularity materially affecting the trial occurred, to the injury of the accused, the court usually represented such matter to the crown, and a pardon was granted' (citing Commonwealth v. Green, 17 Mass. 417).

"The authority of the district courts to grant new trials in criminal cases, and especially after the term at which a conviction is had, must, we think, if existent, be found in the statute; and, if not there, the remedy is by an appeal to the executive who is clothed with the pardoning power. As reason for differentiating regarding relief against judgments in civil and in criminal cases, it may be observed that the judgment in the civil case, when rendered, becomes fixed and a finality, except as the courts possess jurisdiction at law or in equity to grant relief against it in a proper case, while the judgment in a criminal case, in so far as its effectiveness is concerned, is always open to modification or annulment by an appropriate appeal to the pardoning power, against the exercise of which time does not run."

If the views expressed by the learned circuit judge are correct, then the circuit court may, at any time “when it shall appear to the court that justice has not been done," grant a new trial on its own motion. We do not so understand the statute. The words last above quoted are limited and controlled by the preceding clause: "at the same term, or at the next term thereafter." Otherwise the circuit court would never lose jurisdiction of the case, and might grant a new trial, on its own motion, years after the conviction. Such we think was not the intention of the legislature in the enactment of the statute. It must be conceded

that the twenty-sixth ground of motion for new trial was a new ground and in no way germane to the grounds set forth in the original motion. Leave to file it was granted on November 4, 1914, which was after the close of the third term of that year, and the conviction was had in the first term.

In People v. Swartz, 118 Mich. 292 (76 N. W. 491), the respondent, having been convicted at the May term, applied for a new trial, which was denied at the October term. In July following he made a motion to have the application for a new trial reheard, upon the ground of newly discovered evidence. It was held that this was practically an application for a new trial, made more than a year after the case was tried, and came too late (citing the statute and the Marble and Frazer Cases). This statute was again referred to in Hayes v. Circuit Judge, 125 Mich. 277, 280 (84 N. W. 141, 142), where it was said:

"The statute authorizing a new trial in criminal cases limited the time in which the application must be made."

Reg

To the same effect are the following cases: ister v. State, 12 Ga. App. 688 (78 S. E. 142); Kinch v. State, 70 Tex. Cr. R. 419 (156 S. W. 649).; Parker v. State, 10 Okl. Cr. 541 (139 Pac. 708); State v. Adams, 84 Mo. 310; State v. Hunt, 141 Mo. 626 (43 S. W. 389).

In the last-cited case the court said:

"If a motion for a new trial can be amended, or a supplemental motion filed after the expiration of four days after the trial [the statutory time] then for the same reason it can be done any number of days thereafter, which is contrary to the plain letter of the statute."

The same point was also ruled in Mt. Vernon Bank v. Porter, 148 Mo. 176 (49 S. W. 982), and State v. Mason, 18 Mont. 362 (45 Pac. 557).

In civil cases the same rule has been applied where there were statutory provisions. See Mirrielees v. Railroad Co., 163 Mo. 470 (63 S. W. 718); Gullion v. Traver, 64 Neb. 51 (89 N. W. 404); Perry v. Eaves, 4 Kan. App. 26 (45 Pac. 718); Culp v. Steere, 47 Kan. 746 (28 Pac. 987); Dutton v. Seevers, 89 Iowa, 302 (56 N. W. 398); Blue Creek Land, etc., Co. v. Anderson, 35 Utah, 61 (99 Pac. 444). Other cases might be cited to the same effect. While there are cases holding the contrary view, we think that the great weight of authority is to the effect that an amendment containing grounds for a new trial, not germane to those stated in the original motion, cannot be introduced or permitted after the statutory period for making the motion has expired. Was there consent or waiver by the people? Upon this point the relator says:

"It is not a fact that the people consented to and waived the question of the statute of limitations, but did consent to the filing of the so-called amendment and the presentation of the question upon the merits. But, assuming for the sake of the argument that a full, free, and complete consent was registered for the court to hear this matter upon the merits, and a waiver of the question of time of presenting the motion was announced, yet I contend that such consent and waiver conferred no jurisdiction upon the court to grant this motion for a new trial, where it had none without the consent or waiver."

This court has never held that jurisdiction of the subject-matter can be conferred by consent or waiver. In the recent case of People v. Swift, 172 Mich. 473 (138 N. W. 662), the respondent was convicted in the December, 1910, term. The first motion for a new trial was dated April 26, 1911, and the second September 5, 1911. The February term intervened before the first motion was made. Counsel for the respondent there said: