152 Va. 955 | Va. | 1929
delivered the opinion of the court.
L. Hodnett was convicted of unlawfully driving an automobile on the streets of the city of Danville while . he was intoxicated, and sentenced to serve six months in jail and to pay a fine of $100.00. To that judgment this writ of error was allowed.
The material facts, as appears from the evidence for the Commonwealth, are: On the afternoon of Sunday, .August 14, 1927, L. Hodnett called on Cabell Richard
G. W. Lambert testified that Hodnett appeared to be scared and nervous. He could not speak distinctly when he undertook to talk, but was not staggering. Rawley Hall testified that he got within a few steps of Hodnett; that he looked very unusual and he thought he was drunk, but it was possible that his condition was caused by nervousness. J. L. Edwards, desk sergeant, testified that when he entered Hodnett’sname on the blotter he appeared to be drunk and he smelled corn whiskey on his breath.
The facts appearing from the evidence for the defendant are: Cabell Richardson says at the time Hod-nett left his place of business, about an hour before the accident happened, he saw nothing in his manner or speech to indicate that he had had a drink. Mrs. Bert Presnell says Hodnett was at her house just before-the accident occurred, and there was nothing in his-manner or speech to indicate he was intoxicated. Mrs. L. B. Bryant says that at the time of the accident. Hodnett was driving along the street in a normal manner and at a normal rate of speed, with his car under-
When the verdict of the jury was returned, the defendant moved the court to set it aside because contrary to the law and the evidence, which motion the •court overruled. Whereupon the defendant moved the
Petitioner practically admits that the court did not err in refusing to set aside the verdict as contrary to the law and the evidence and rests his right to a new-trial upon the court’s refusal to set aside the verdict of the jury upon the ground of after-discovered evidence.
In order for the after-discovered evidence to be a proper basis for granting a new trial, such evidence must — •
“(1) Have been discovered since the former trial;
“(2) Be such as by reasonable diligence on the part-of the defendant could not have been secured at the former trial;
“(3) Be material in its object, and not merely cumulative, corroborative and collateral; and
“(4) Be such as ought to produce, on another trial,, an opposite result on the merits;
“(5) Go to the merits of the ease, and not merely impeach the character of a former witness.
“Unless these circumstances concur a new trial is never granted on the ground of after-discovered, evi—
The defendant had no reason to suspect the after-discovered evidence was in existence at the time of the trial and no amount of diligence on his part would have enabled him to secure it at that trial.
It is often a difficult question to determine whether after-discovered evidence is material or merely cumulative, corroborative and collateral. The after-discovered evidence, under consideration here, is material and goes to the heart of the case. If true the defendant was probably not intoxicated while driving the car; and if not intoxicated, he was not guilty of the charge for which he is being prosecuted. Whether the defendant is guilty of the charge for which he is being tried before a jury is always a question for the jury.
The after-discovered testimony contained in the affidavit of J. L. Edwards is not merely cumulative. While it tends to support the theory of the defense on the issue of intoxication, the kind and character of the facts contained therein are entirely dissimilar from the facts disclosed upon the trial. The evidence of Edwards on the trial was that the defendant was intoxicated and the witness smelt corn whiskey upon his breath, while the after-discovered evidence is that the witness was not in a position to smell defendant’s breath when he was brought to the police station, and was unable to say anything either one way or the other, as to there being the odor of liquor on his breath. No other witness testified on the trial that the defendant had the odor of liquor on his breath.
In St. John’s Ex’rs v. Alderson, 32 Gratt (73 Va.) 140, this court held that “in determining whether or
In Hilliard on New Trials, page 502, note A, this is said: “Admissions and conversations of a defendant, in direct conflict with his testimony and with the theory of his defense are not impeaching but original evidence, citing Alger v. Merritt, 16 Iowa 121. Evidence which is specifically distinct and bears upon the issue is not cumulative, though it may be intimately connected with parts of the other testimony.”
In Powell v. Commonwealth, 133 Va. 756, 112 S. E. 661, 33 A. L. R. 541, the court said: “The modern rule is not so strict. By the preponderance of authority it seems to be sufficient if the court has evidence before it which establishes the existence of the evidence relied on to show the perjury or mistake, in such a clear, and convincing manner as to leave no room for doubt as to the existence of the evidence so relied on, and the court is satisfied that the evidence is not collusive; that it seems to be true, and ought, if true, to produce on another trial an opposite result on the merits.”
In the instant case, the record discloses nothing to indicate that the testimony contained in the affidavit of witness Edwards is untrue, or collusive, and made with the purpose of enabling the defendant to secure a new trial. The allegations contained in the affidavit are not contradicted and must be taken'to be true.
The testimony on the question whether the defendant was intoxicated at the time he was driving the
We are. not unmindful of the general rule that if the court can fairly conclude that the jury would have come to the same conclusion had the perjured testimony been eliminated, a new trial will not be granted. But where, as in the instant ease, we are unable to reach that conclusion, this rule has no application.
In Hilliard on New Trials, page 504, section 17, the author says: “But although the rule that a new trial will not be granted on the ground of newly-discovered cumulative evidence, is a rule that will be relaxed with great caution; yet it is said: ‘The court ought not to shut their eyes to injustice on account of facility of abuse in cases of this sort.’ ” And, says the author: “It is sometimes held that they will not refuse a new trial on the ground of newly-discovered evidence for the reason that such evidence is cumulative merely, if it is sufficient to render clear that which before was a doubtful case. Or in a nicely balanced case. Or if it is conclusive. Or of such a character as prima facie to raise a strong probability that it will be decisive of the case.”
In Johnson v. Commonwealth, 126 Va. 775, 101 S. E. 343, the law is stated thus: “The object and aim of all litigation is the attainment of substantial justice, and where, in the light of the after-discovered evidence, grave doubt is entertained as to the correctness of the verdict, and it seems probably that if the newly-discovered evidence had been before the jury a different verdict would have been reached on the merits, the verdict should be set aside. While it is desirable that there should be an end of litigation with as little delay
For the reasons stated, the judgment complained of will be reversed, and the ease remanded for a new trial in conformity with the views herein expressed.
Reversed and remanded.