114 Cal. 427 | Cal. | 1896
The appellant was charged with the larceny of a number of hogs, the property of one Bertch, and was convicted of grand larceny. He moved for a new trial, and the motion was denied; and from the judgment and the order denying a new trial he appealed.
The only point pressed by appellant is that the court erred in not granting a new trial upon the ground of newly discovered evidence. One Harry Lynde was a principal witness against the appellant, and was, according to his testimony, an accomplice. He testified that, on or about the 15th of November, at 9 or 10 o’clock at night, he, in company with the appellant, visited the ranch of said Bertch, and drove out of the field twenty-one or twenty-two hogs, and took them a few miles to a place where they were corralled that night; that the next night they drove them to a place called Armona, reaching the latter place about 3 or 4 o’clock in the morning, where the hogs were corralled; that on Sunday morning they loaded them into two wagons belonging to the appellant, from which place they were hauled in said wagons to various places throughout the country and sold. There was a great deal of other testimony tending to connect the appellant with the larceny of said hogs, and corroborative of the testimony of said Lynde. It was proven by other witnesses that appellant sold portions of the hogs at various places, and he admits that he did so sell them, his explanation being that he was hired by the said Lynde to haul said hogs from Armona, that he did not know or have any reason to believe that they were stolen, and that after he left Armona, and before he sold any of the hogs, he purchased the same from the said Lynde, giving him a certain sum of money, and agreeing to pay the balance at a future time. On the motion for a new trial there was presented an affidavit made by the said Lynde, in which he testified that the testimony which he had given on the trial against appellant was willfully false, that appellant did not participate in the larceny of the hogs, and did not know that they had been stolen, and
Applications on the ground of newly discovered evidence are addressed to the discretion of the trial court, and its action will not be set aside except for. an abuse of such discretion, and the presumption is that the discretion was properly exercised; and it has been repeatedly held by this court that such applications are to be regarded with disfavor. (Hayne on New Trial and Appeal, par. 87, and cases there cited; People v. Sutton, 73 Cal. 243; People v. Freeman, 92 Cal. 359.) It cannot be said that, as a matter of law, a new trial should be granied whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony; if that were so, justice "would be defeated in many grave cases. Notwithstanding such an affidavit, the appellate court will rest largely upon the discretion of the judge who heard the trial, and will not disturb his ruling except in clear cases of abuse of discretion. The strongest case in favor of appellant’s contention is that of Mann v. State, 44 Tex. 642. In that case the appellant was convicted of rape upon the person of a young girl; and without her testimony there was no shadow of a case against the appellant. In her testimony at the trial she first said that the appellant was innocent, but, being examined by direct ques
The judgment and order appealed from are affirmed
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.