185 Iowa 1138 | Iowa | 1919
According to plaintiff, the assault was committed soon after five o’clock in the afternoon, or somewhere between five and six. That the husband had been at work in the field during the day, and until about the hour mentioned; that
Except the persons above named, no other witness was produced or examined on either side who claims to have seen the defendant or to have had any knowledge where he was, during the hour from five to six o’clock on that afternoon. In support of the-motion for new trial, several affidavits were filed, stating, in substance, that two of the affiants, Neis Anderson and Freda Anderson, drove past the defendant’s place, shortly after five o’clock on the afternoon in question, and, as they passed the house, they saw two men (presumably DeWitt and Skeels) driving into the yard, and at the same time, or immediately thereafter, they (affiants) also passed the defendant, mowing weeds in the road. While the motion was still pending, defendant filed other affidavits by Janies Spencer and his son, each to the effect that the affiants drove along the same road, about the hour of 5:45 P. M. of that day, and met DeWitt and Skeels as they were driving toward home, and within a short distance from defendant’s house; and immediately afterward, they passed defendant himself, mowing along the road.
That this evidence would have been admissible if offered on the trial, as tending to support the defendant’s denial of the plaintiff’s story, is, of course, apparent, and, had the
In a certain sense, too, the proposed new evidence is, to a degree, cumulative only; though the writer of this opinion thinks that the merely cumulative character of newly discovered evidence should not always be a decisive consideration against a motion for a new trial, and especially in cases where the moving party is charged with a serious offense, and has been, without fault on his part, compelled to