(dissenting).
I am unable to agree with the views of my colleagues. I think the appeal should not be dismissed but should be considered on the merits and a reversal ordered.
*8901. Notice of appeal was timely, having been filed within five days from the judgment of conviction. Appellant should not he penalized for having filed it before the motion for new trial had been acted upon. Had a new trial been granted appellant could have withdrawn the notice of appeal. Congress re-established the right of appeal in these cases when it created this court a year ago, and we should not destroy that right by technical restrictions.-
2. The conviction should be reversed because of the refusal to grant a new trial. It seems clear that the officer was seeking to establish a narcotics charge against the defendant. He said he had information that she was a “peddler of narcotics” and the uncontradicted evidence is that while in custody she was examined by a physician to determine whether she was a user of narcotics. The government’s showing on the charge of soliciting prostitution was dubious at best, and rather plainly indicated that the charge of soliciting was placed against the defendant when no evidence for the narcotics charge could be found. The arresting officer himself testified at the very outset of the trial that the defendant told him, “You had better go on down the street because the girls down here all know that you are a policeman” ; that he replied, “Are you kidding ? I’m no policeman”; that defendant then made the unlawful proposal, and that after a brief discussion as to terms, and as they were starting to turn into the yard of her home he placed her under arrest; that a police cruiser containing two other officers “was driving past and witness hailed them and put the defendant into the car and took her to No. 4 police station where he searched her pocket book and found a book of lottery, or number" slips.”
Defendant’s testimony was that three officers, Blick, Allen and one “Smiley” drove up as she was waiting for a taxi in front of her home; that one of the officers called her to the car and Officer Allen took hold of her and pushed her into the car; that he took her pocket book and searched it and asked her where the dope was. She testified further that at the precinct one of the officers asked, “What are you going to charge her with ?” and Officer Allen said, “Put soliciting against her, she has a long record, it will stick”. Of this there is no contradiction in the record.
Obviously if defendant’s version of the incident was correct she could not have been charged with soliciting for she had no conversation with the officers but was swiftly pushed into the squad car, searched and arrested. To me it seems significant that neither of the officers in the squad car was called to give testimony. Presumably they could have shed considerable light on what transpired immediately before the arrest and whether Officer Alleni had left the squad car or had had any talk, or time or opportunity to talk, with defendant before the arrest.
After conviction defendant filed a motion for new trial, supported by her own affidavit and those of two witnesses. One was Marie Belt, who made her affidavit while in the hospital, as follows: “I am in the Hospital and that I told the defendant, Georgiana Hamilton, Friday night that I was expecting to go to the Hospital to give birth to a baby; that I had talked with her just before a car drove up and called Georgiana to it; that I saw one of the men snatch her pocket book, look in it, push her in the car, and drive away; that I am a married woman, the mother of four children, with no police record.”
The second affidavit was that of Thelma Matthews who swore: “I saw Geor-giana Hamilton when she was called to a car occupied by certain police officers on Friday night, November 6, 1942; that I saw one of them grab her pocket book and push her into the car; that Georgiana did not know that I saw what happened until she was released on bond, Monday, November 9, 1942.”
In her own affidavit defendant swore that she had not produced Marie Belt at the trial because she thought she had gone to the hospital to give birth to a baby as she had told her the night before, just before the officers arrested her; that she did not know that the witness Thelma Matthews had seen the incident and did not discover it until after she had been released on bail.
It must be remembered that defendant was arrested on Friday evening, tried and convicted the following morning and not released on bail until the following Monday. I am satisfied that the evidence of the two witnesses mentioned was “newly discovered” under the decided cases, and that fairly considered, the testimony, if received, would have been likely to require *891an acquittal. I cannot agree with the statement in the majority opinion that we are not in a position to “evaluate” the proposed new evidence. This is relinquishing, without reason, one of our plain functions as a reviewing court. The two witnesses were never summoned into court for examination or cross-examination. The trial judge neither saw nor heard them and made his “evaluation” of the proposed testimony solely from the affidavits. Those affidavits are before us and appellant is entitled to have us review them. If at the trial defendant had been corroborated by those two witnesses is it likely that the trial judge would have rejected such persuasive testimony, establishing as it did that there was neither time nor opportunity for solicitation?
Looking at the picture as presented I am satisfied that the refusal to grant a new trial constituted an abuse of discretion. This term is not so harsh as it may seem. To find abuse of discretion we need not find that there was an improper motive, wilful purpose, prejudice, partiality or intentional wrong on the part of the trial judge.1 We need only find, as I think we should find here, that the exercise of discretion is subject to review “where the error in its exercise is plainly shown, and works material hardship and injustice.”2 The judicial discretion should be exercised “in a manner to subserve and not to impede or defeat the ends of substantial justice.” 3 I do not suggest that we should set up our own judgment against that of trial judges in purely discretionary matters, but when the precise ground on which the motion is based is clearly stated and the legal effect of such a ruling is not left in doubt it should be reviewed with the same freedom as rulings upon any other ques- . tion of law.4 For obvious reasons’ an appellate court should more closely study a ruling refusing a new trial than one granting a new trial.5 The cases cited dealt with civil disputes and I regard them as applying even more strongly where liberty is involved.
Certainly neither the nature of the charge nor the prior record of defendant should be permitted to affect her right to a full, fair and impartial trial. When that result has not been achieved, a trial judge should grant a new trial. When it is refused, we should not hesitate to correct the error.
Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W.287.
In re Mattullath, 38 App.D.C. 497.
Nicholls v. Anders, 13 Cal.App.2d 440, 56 P.2d 1289, 1292.
Mullong v. Mullong, 178 Iowa 552, 159 N.W. 994.
Id. Supporting my general views, above expressed, are National Horse Importing Co. v. Novak et al., 105 Iowa 157, 74 N.W. 759; Turley v. Griffin, 106 Iowa 161, 76 N.W. 660; Stockwell v. Chicago C. & D. R. Co., 43 Iowa 470; Riley v. Monohan, 26 Iowa 507; Nelson v. Western Union Tel. Co., 162 Iowa 50, 143 N. W. 833; Busse v. Schaeffer, 128 Iowa 319, 103 N.W. 947; Merchant v. O’Rourke, 111 Iowa 351, 82 N.W. 759.