2. Newly discovered evidence, to wit:“ Hancock county, Oct. 27, 1891. Mr. William Warren : Hear Sir,—I write you a few lines to let you hear from me. I am well, and hope when you get letter it will you the same. I think hard of you for not coming over here last Sunday. I stayed at home all day. I looked for you. Please come over here Sunday. I want to see anyhow. The way that you treat me, it makes me think you don’t mean what you say. What you was talking to me about, if you come over next Sunday it will be all right. Sweetheart, don’t pay attention to that. Come, and I will tell you all about it. I will come to a close by saying howdy. Your truly, your dear darling at home, Miss Rebecca Fraley.”William Warren made affidavit that he received this letter from the hands of Allen Watts, and on the same day saw Rebecca Fraley and talked to her about it, and she admitted writing it; that during the past year he had considerable correspondence with her, and recog: nizes this to be her handwriting ; that if sufficient time were allowed him, he could produce other letters from her; and that he never communicated these facts to the defendant or his counsel until May 1, 1892. (The trial occurred on April 14.) The defendant made affidavit that he did not know of the existence of the letter or of any of the facts stated in the affidavit of Warren until May 2, 1892, and that he had not seen Warren since his trial. The counsel made affidavit “ that as sole attorneys employed by Jackson Lewis they never knew of facts stated in affidavit of ¥m. Warren until after the trial and conviction of Jackson Lewis.” William Warren was a witness for the defendant at the trial. He testified that he had sexual intercourse with Rebecca Fraley several times during the protracted meeting in August and September, 1891. She testified directly to the contrary.8. Another ground in the motion for a new trial is, that the solicitor-general, while the case was being tried, prepared a bill charging Wm. Warren with fornication, and transmitted it to the grand jury by a bailiff, and stated in the hearing of the jury that he proposed to prosecute the witness. No objection to this was made, and there was no request to instruct the jury about it by defendant’s counsel.J. T. Jordan, T. M. Hunt and T. L. Reese, for plaintiff in error.W. M. Hoavard, solicitor-general, by brief, contra.
