Cooper v. State

53 Miss. 393 | Miss. | 1876

Simrall, C. J.,

delivered the opinion of the court.

The plaintiff in error was tried and convicted of the larceny of a double-barrelled shot-gun, alleged in the indictment to have been of the value of fifteen dollars. But one error has been urged in this court predicated on the third ground in the motion for a new trial; viz., “ Because, since the trial, the defendant has heard of new and material testimony . . . which has come to his knowledge since the trial, as appears by affidavits filed.”

The law required that the accused should have used diligence in the preparation for trial; and in applications of this sort he must show that the testimony on which he relied could not have been discovered sooner, not from fault on his part; that it is material, and not cumulative; and that in all probability it would produce a different result on the second trial. Bledsoe v. Little, 4 How. (Miss.) 13; Wright v. Alexander, 11 S. & M. 411; Watson v. Dickens, 12 S. & M. 608. It should also be made to appear that the testimony would be attainable on a second trial.

Passing byThe objection to the affidavit of the accused, that he does not state that he can procure the attendance of the witness at another trial, the showing is insufficient, because of the laches of the accused on the trial.

The indictment laid the property in the gun to be in John Jordan. The proof was that Jordan was in possession at the time of the theft as bailee, the gun having been left with him by the owner for repair. The new testimony relates exclusively to the value of the property. Its effect could only be to reduce the grade of the offence from grand to petit larceny. The substance of the affidavit of the accused is, that he inquired of Jordan upon the trial who was the owner of the gun, and that Jordan could not give him the information; that he has learned since the trial that Reuben Stewart is the owner. “ Affiant was not aware at or before the trial . . . what was the value of the gun, or that he could prove the value by Reuben Stewart or any one else, and that he made every effort to find out the real value of said gun before the trial, but was not able to do so,” &e. Reuben Stewart and two other persons made affidavits that the gun was not worth more than eight dollars.

Recurring to the testimony delivered on the trial on this point, John Jordan, the first witness for the State, said that he was a gunsmith, that the gun had been left with him for repairs, and that he had repeatedly seen it. “ The gun was worth fifteen dollars; he would give fifteen dollars for the barrels alone, they being very fine London twist.” This was all the testimony on the point. But it appears affirmatively that other persons were acquainted with the gun. Joiner, the constable, was a witness, and took the gun in charge when he arrested the accused. It was produced before the mayor of West Point, before whom the preliminary examination was had. Mr. Gore was present when Joiner found the gun. Rain Wooten, a gunsmith, was a witness on the trial, and knew the gun ; and yet the accused put no questions to either Joiner, Gore or Wooten as to value. He did not call the mayor. The accused and his counsel seem to think that Reuben Stewart, the owner, bears the same relation to the question of value as a subscribing witness does to the paper which he attests; that he is a necessary witness. In the nature of things, the value of this sort of property in such common use can be estimated by almost every man in the community. It is not like paintings or precious stones, of which experts alone can form an intelligent judgment; but is rather like that class of merchandise and commodities, of the value of which most persons have knowledge. Since the defendant did not test the accuracy of Jordan’s opinion by examining Wooten, also by his trade, especially competent and reliable on this point, nor the constable, it would hardly be going too far to hold that he was content with the value as estimated by Jordan.

The showing must satisfy the court that injustice has been done. That requirement will not be met if the object of the new evidence is to contradict or impeach a witness, nor if it applies to a point directly drawn in issue which was abandoned on the trial, or in the preparation of it. Hilliard on New Trials, 376 ; Crafts v. Union Mut. Fire Ins. Co., 36 N. H. 44; Moore v. Philadelphia Panic, 5 S. & R. 41. The accused made no effort on the trial to prove a value that would reduce the offence to petit larceny. The suggestion made in the case cited from 5 S. & R. is not inappropriate, that such applications must be “ received with great caution, because there are few cases tried, in which something new may not be hunted up, and because it tends to the introduction of perjury.”

But is it probable that the new evidence would produce a different verdict ? Where there is a difference in the quality of the same kinds of articles, there will be more or less difference of opinion as to value. Absolute certainty is not attainable. The judgment is reliable according to the degree of information and knowledge which the person has. Is not the opinion of Jordan, who is acquainted with the material and construction of fire-arms, worth more than that of a half-dozen witnesses who cannot have his acumen and experience ? and if a jury should adopt his opinion and reject that of the other five, could it be safely said that their conclusion is wrong ? The indictment notified the accused that value was a material fact to be proved. It was crassa negligentia if he declined, to examine the witnesses produced by the State especially qualified to speak on the subject, or call others shown to have knowledge of the gun. The owner was not a necessary or indispensable witness.

On the whole case the judgment is affirmed.