37 Iowa 449 | Iowa | 1873
The verdict for plaintiff was rendered upon the 20th day of August, 1870, and within the time prescribed by law defendant interposed a motion for a new trial upon the ground that the findings of the jury were not supported by the evidence, and were in conflict with the instructions given by the court, and that the law was incorrectly given by the court to the jury. The motion was submitted to the court at the term the case was tried, and taken under advisement until the
III. There is still another reason upon which the court’s action is fully justified. The evidence which is claimed to be newly discovered is simply cumulative and in corroboration of other witnesses who testified in behalf of defendant. The plaintiff testified that at a certain time/ and place she witnessed criminal intercourse between defendant and her daughter. The defendant and the daughter in their evidence both deny the act. The newly-discovered evidence set out in defendant’s petition is that of a witness who was present at the time and place and, as it is claimed, will testify that the act was not committed. The evidence set out in the petition is simply the statement of occurrences and acts which took place at the time and place as testified to by defendant, and the girl with whose seduction he is charged. They related in their evidence that certain words were spoken and certain acts were done, and others not done. The witness who is mentioned in the- petition, it is claimed, will testify to the same things. However difficult it may be in some instances to determine just what is cumulative evidence, it is not so in this case. The evidence in question is simply a repetition of the same things by another witness, and is undoubtedly cumulative in character. It is of the same kind as that pronouced cumulative in Sturgeon v. Ferron, 14 Iowa, 160.
We are of the opinion that because of the cumulative character of the evidence newly discovered, a new trial 'was properly refused defendant.
The judgment of the circuit court is
Affirmed.