CHAPTER XXXIV. NEWLY-DISCOVERED EVIDENCE. $ 516. General considerations. 517. Diligent efforts to find and to procure the evidence in season must be shown. 518. Burden of proof-The new evidence must be set out in the affidavits. $519. Credibility of the new evidence. 521. New evidence 522. The new evidence must not be § 516. General considerations.—In the absence of a permissive statute, a court has no power to grant a new trial in case of a felony on account of newly-discovered evidence. As regards misdemeanors, a court possessing general jurisdiction has inherent power at common law to grant a new trial on motion, if it shall appear that justice will be advanced thereby. So far as felonies are concerned, the right of the accused to a new trial. upon the grounds of newly-discovered evidence, is wholly the creature of statutes, which usually provide for the cases in which the right may be recognized,1 and the mode in which its exercise may be secured. The right to a new trial is never absolute.2 Whether a new trial shall be granted upon the grounds of newly-discovered evidence is in the legal discretion of the court. If this discretion is exercised in a legal and proper manner, the "Where it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as, if before received, would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence. The court in such cases can, however, compel the personal appearance of the affiants before it for the purposes of their personal examination and crossexamination, under oath, upon the contents of the affidavits which they subscribed." N. Y. Code Criminal Procedure, § 465, subd. 7. 2 State v. Pell (Iowa, 1909), 119 N W. 154; People v. Jones, 115 N. Y. S. 800; Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532; Thomas v. State, 129 Ga. 419, 59 S. E. 246. action of the court denying a motion for a new trial is not reversible. But if the discretion of the court is exercised arbitrarily or capriciously, or in such a manner as to work a manifest injustice to an innocent person, so that it can be said to be clearly and unmistakably abused, the action of the court will not be regarded as final. § 517. Diligent efforts to find and to procure the evidence in season must be shown.-The accused, when moving for a re-trial upon the grounds of newly-discovered evidence, must show by affidavits that he used due diligence to procure the evidence in time for use at the trial if he knew of its existence prior to his con 3 3 People v. Trezza, 128 N. Y. 529, 28 N. E. 533, 8 N. Y. Cr. 291, 295; People v. Lane, 31 Hun (N. Y.) 13, 15; Commonwealth v. Ruisseau, 140 Mass. 363, 365, 5 N. E. 166; People v. Demasters, 109 Cal. 607, 608, 42 Pac. 236; People v. Urquidas, 96 Cal. 239, 242, 31 Pac. 52; People v. Sutton, 73 Cal. 243, 15 Pac. 86; United States v. Williams, 1 Cliff. C. C. 5, 28 Fed. Cas. 16707; State v. Powell, 51 Wash. 372, 98 Pac. 741; State v. Brown, 121 La. 599, 46 So. 664. It may be well in this place to call attention to the rule which, in the absence of a statute prescribing when a motion for a new trial must be made, requires that it shall be made before the expiration of the term at which the trial was had. People v. Bradner, 107 N. Y. 1, 13 N. E. 87; People v. Hovey, 30 Hun (N. Y.) 354; Ex parte Holmes, 21 Neb. 324, 32 N. W. 69. In Chandler v. Thompson, 30 Fed. 38, the court, on page 44, says: "The statute conferring jurisdiction upon the Federal courts to grant new trials expressly provides that such power should be exercised 'for reasons which new trials have been usually granted in courts of law.' This provision applies only to jury. * * trials, and is directory to the courts, to be governed by the rules and principles of the common law. The courts of the common law have usually granted new trials when the verdict is against the weight of the evidence, or contrary to law; for the admission of illegal evidence, or the rejection of competent evidence; or when a party has been deprived of evidence by accident and without fault on his part, or is taken by surprise in a matter that he could not reasonably anticipate, for misdirection of the court upon material questions of law or for serious irregularity in the trial; or misconduct of the jury; or unfair conduct of the prevailing party; or manifest injustice has been done, * * * when the losing party has discovered material evidence since the trial, and satisfied the court that he had used due diligence in preparing his case for trial; that the newly-discovered evidence will tend to prove a material fact which was not directly in issue on the trial, or was not then known and investigated by proof, and will probably produce a different result, * * * and is not merely cumulative." viction. He must state facts in the affidavits explicitly and specifically accounting for his failure to produce such evidence and constituting a proper degree of diligence on his part. A mere allegation that he used due diligence will not suffice. The affiant ought to set forth with reasonable length and with some particularity the various measures resorted to by him to procure the production of the evidence at his trial. He ought also, if it is possible, to state the reasons why his efforts were not successful. But he must state facts, and not mere conclusions, opinions or guesses. 5 The reasons for requiring the exercise of diligence by the accused in this connection are obvious. If the existence and the character of the evidence were known to him while his trial was pending, and if he could have procured it in season by the exer 4. Harper v. State, 131 Ga. 771, 63 S. E. 339; State v. Pell, 140 Iowa 655, 119 N. W. 154; Evans v. State, 55 Tex. Cr. 649, 117 S. W. 820; Williams v. State, 4 Ga. App. 853, 62 S. E. 525; People v. Landiero, 192 N. Y. 304, 85 N. E. 132; Parker v. State, 3 Ga. App. 336, 59 S. E. 823; Davis v. State, 52 Tex. Cr. 149, 106 S. W. 144; Rogers v. State, 129 Ga. 589, 59 S. E. 288; Day v. State, 91 Miss. 239, 44 So. 813; State v. Sargood, 80 Va. 412, 68 Atl. 515, 130 Am. St. 992; State v. Hall, 97 Iowa 400, 66 N. W. 725; Sconyers v. State, 85 Ga. 672, 678, 12 S. E. 1069; Lynch v. State, 84 Ga. 726, 730, 11 S. E. 842; Statham v. State, 86 Ga. 331, 12 S. E. 640; Ford v. State, 91 Ga. 162, 164, 17 S. E. 103; Gaddis v. State, 91 Ga. 148, 151, 16 S. E. 936; Meurer v. State, 129 Ind. 587, 29 N. E. 392; Aholtz v. People, 121 Ill. 560, 13 N. E. 524; Bean v. People, 124 Ill. 576, 585, 16 N. E. 656; State v. Koontz, 31 W. Va. 127, 5 S. E. 328; Field v. Commonwealth, 89 Va. 690, 694, 16 S. E. 865; State v. Gunagy, 84 Iowa 177, 182, 183, 50 N. W. 882; Washington v. State, 35 Tex. Cr. 154, 32 S. W. 693; Bell v. State (Tex.), 20 S. W. 362; McVey v. State, 23 Tex. App. 659, 5 S. W. 174; State v. Moses, 139 Mo. 217, 40 S. W. 883; State v. Musick, 101 Mo. 260, 14 S. W. 212; State v. Lichliter, 95 Mo. 402, 408, 8 S. W. 720; State v. Keaveny, 49 La. Ann. 667, 21 So. 730; State v. Hanks, 39 La. Ann. 234, 236, 1 So. 458; State v. Washington, 36 La. Ann. 341; People v. McCurdy, 68 Cal. 576, 10 Pac. 207; People v. Jones (Cal.), 8 Pac. 611; People v. Freeman, 92 Cal. 359, 28 Pac. 261; Klink v. People, 16 Colo. 467, 27 Pac. 1062. "State v. Crawford, 99 Mo. 74, 80, 12 S. W. 354; Taylor v. State, 132 Ga. 235, 63 S. E. 1115; Orr v. State, 5 Ga. App. 76, 62 S. E. 676; Cheek v. State, 171 Ind. 98, 85 N. E. 779Where the accused submits proper affidavits showing facts constituting diligence on his part, the state may offer counter affidavits for the purpose of proving that he did not use due diligence. Smith v. State, 143 Ind. 685, 687, 42 N. E. 913; People v. Casena, 90 Cal. 381, 383, 27 Pac. 300. cise of diligence, it was his duty to do so at the earliest opportunity. A person indicted for a crime and on trial cannot be allowed to speculate upon the outcome of his trial and to hold back evidence which he may easily procure, with the hope and expectation that, should the proof against him be more convincing than he anticipates, he can put the state to the additional expense of another trial, at which the evidence that he has suppressed can be introduced. The law favors a full discovery of all relevant evidence which has a bearing upon the criminality of the defendant. It will not permit the accused to mask his batteries, and, having thus drawn all the fire of the prosecution, he cannot, after having been convicted, take the chances of a new trial in which everything would be in his favor. Hence the relevancy of the evidence, its cogency and credibility, and even the reasonable probability that its introduction, if a new trial is granted, may result in the acquittal of the accused, will not relieve him from the consequences of his prior laches. § 518. Burden of proof-The new evidence must be set out in the affidavits. The burden of proof to show that the accused has complied with all the requirements of the law is on the party moving for the new trial. The motion for a new trial must be accompanied by and be based upon a proper affidavit, sworn to by the accused, showing in detail all the essential jurisdictional facts, unless some valid reason exists for its non-production.8 So, too, all the facts which constitute the newly-discovered evidence ought to be set forth at reasonable length, either in the affidavit of the accused, or in an affidavit of the witness whom he expects to testify to them. This is absolutely necessary in order that the court may ascertain the materiality and credibility of the testimony, and may determine if it be cumulative or not.9 6 People v. Landiero, 192 N. Y. 304, Laughlin, 27 Mo. 111; State v. Camp85 N. E. 132. bell, 115 Mo. 391, 393, 22 S. W. 367; 'People v. Fice, 97 Cal. 459, 32 Pac. State v. Ray, 53 Mo. 345; Weeks v. 531. * State v. Laycock, 136 Mo. 93, 100, 37 S. W. 802; State v. Nagel, 136 Mo. 45, 50, 37 S. W. 821; State v. Mc53-UNDERHILL CRIM. Ev. State, 79 Ga. 36, 3 S. E. 323; Dean v. State, 93 Ga. 184, 18 S. E. 557. State v. Moses, 139 Mo. 217, 49 S. W. 883; State v. Hollier, 49 La. Ann. § 519. Credibility of the new evidence.-As a result of the requirement that the new evidence must be such as would, had it been introduced at the trial, have probably resulted in the acquittal of the accused, it is necessary that it shall appear to the court hearing the motion that it is probably true.10 The witness who is expected to testify must appear to the court to be credible. His credibility is to be determined by the judge hearing the motion," who may examine him in open court, and he may also examine any other person who has made an affidavit which is offered to support the motion in order to test his credibility. And the prosecuting attorney may submit affidavits of persons who know the reputation for veracity of the proposed witness, and who are able and willing to swear that they would not believe him under oath.18 The admission by a witness for the prosecution that he had sworn falsely at the trial does not alone constitute new evidence. Even though he shall state that he deliberately gave false testimony to some material facts, and it shall also appear that the conviction of the accused was largely owing to his testimony, it does not follow that a retrial ought to be had; for the court may not believe his present statement is true and made in good faith. But if the present statement of the witness is so far contradictory 371, 21 So. 633; People v. Eppinger, 114 Cal. 350, 46 Pac. 97; Richardson v. State, 47 Ark. 562, 2 S. W. 187; Slater v. United States, 1 Okl. Cr. 275, 98 Pac. 110. In a case where the accused moved for a new trial on the ground that another person had confessed the commission of the crime of which he stood convicted, he was required to state in his affidavit the name of the person, his residence and whether his attendance could be procured in season. State v. Miller, 3 Wash. St. 131, 28 Pac. 375. 10 Lawrence v. State, 36 Tex. Cr. 173, 36 S. W. 90; Clark v. State, 38 Tex. Cr. 30, 40 S. W. 992; Grant v. State, 97 Ga. 789, 25 S. E. 399; People v. Mayhew, 19 Misc. (N. Y.) 313, 44 N. Y. 206, construing Code Crim. Pro., § 465, subd. 7; Johnson v. State, 85 Ga. 561, 11 S. E. 844; Neill v. State, 79 Ga. 779, 4 S. E. 871; State v. Tall, 43 Minn. 273, 45 N. W. 449 ; People v. Noonan, 14 N. Y. S. 519. 60 Hun (N. Y.) 578, without opinion, 38 St. Reporter (N. Y.) 854; People v. Lane, I N. Y. Cr. 548, 31 Hun (N. Y.) 13; People v. Henry. 127 App. Div. (N. Y.) 489, 111 N. Y. S. 1005. |