60 So. 975 | Ala. Ct. App. | 1913
If the demurrer to the complaint upon the ground, among others, that it “contains two
The plaintiff having offered in evidence an affidavit made by the defendant before I. H. Benners, judge of the Birmingham court of common pleas, charging the plaintiff with perjury, a warrant for the arrest of the plaintiff on that charge, which warrant was made returnable before the judge of the Birmingham court of common pleas, and the return made on that warrant, showing the arrest of the plaintiff under it, then offered in evidence the entry on the docket of the court of common pleas, showing that in that court the plaintiff waived a preliminary hearing on the charge there made against him, and was bound over to await the action of the grand jury of the criminal court of Jefferson county, the plaintiff’s counsel stating at the time that this evidence would be followed with evidence showing the action of the grand jury on the charge, that entry was properly received as evidence of the fact which carried the charge before the grand jury for its consideration and fiction.
It is earnestly contended by the counsel for the appellant that the motion for a new trial should have been granted upon the grounds suggesting newly discovered evidence, which, it is claimed, showed that the criminal proceeding against the plaintiff on the charge of perjury had not been considered by the grand jury, and that that prosecution had not been terminated by the failure of the grand jury to indict the plaintiff until after the filing of the complaint in this cause. " The claim is that this newly discovered evidence shows that
The evidence in the case was in. conflict, and the question of the plaintiff’s right to recover was one for the jury. Under the familiar rules governing the review of the action of a trial court in overruling a motion for a new trial on the ground that the verdict was against the weight of the testimony, it cannot be said that it has been made to appear that there was error in such ruling in the present case.
Affirmed.