117 P. 862 | Wyo. | 1911
The plaintiff in error, Lorenzo Paseo, was convicted in the district court of Big Horn county of the crime of murder in'the first degree for the killing of one Charles Cole, and was sentenced to be hanged. Erom that judgment he brings the case here on error.
The case has been submitted in this court on briefs without oral argument, and the greater part of the brief of. counsel for plaintiff in error is devoted to a discussion of the evidence; it being urged that the evidence is insufficient
It is contended that the court erred in permitting certain witnesses to give their opinions as to where they thought the shots must have been fired from. Paseo testified that he was near a table at the end of the bar when he fired the shots, while the witness who remained in the room testified that he was between the front and back bar near the cash register and about midway along the bar. The opinions expressed by the witnesses tended to support the latter; and we think the testimony should have been excluded, it not being a matter upon which expert testimony was admissible, the jury being as competent as the witnesses to judge of that matter. But the witnesses were fully interrogated on cross-examination as to the reasons for their opinions and it appears that their opinions were based chiefly on the course of the bullet through the cigar case, which was
In their brief counsel for plaintiff in error complain of two instructions given by the court to the jury. We have carefully searched the record and fail to find any exception taken at the time to the giving of either of them. We have, however, examined all of the instructions given in the case, and they appear to us to fairly and correctly state the law applicable to the evidence in the case.
Another ground stated in the motion for a new trial was newly discovered evidence. The granting of a new trial on that ground is a matter largely within the discretion of the trial court, and its decision will not be disturbed unless it appears that the court has abused its discretion, or has violated a clear right of the appellant. Nor will a new trial be granted on that ground when the evidence claimed to have been discovered since the trial is merely cumulative, or upon unimportant matters in the case, or is in the nature of impeachment, or where the newly discovered evidence, if produced, would not in the opinion of the court affect the verdict. Numerous authorities on the subject are cited in the note to the case of Link v. U. P. Ry. Co., 3 Wyo. 681, and 14 Ency. P. & P. 791. In this case the greater part of the newly discovered evidence is in the nature of .impeachment and in one instance the person by whom it is proposed to prove that before the trial a witness for the state made a ’statement differing materially from his testimony was
No further order is necessary as we are advised by the brief of the attorney general that the sentence has been commuted to imprisonment for life.-
Affirmed.