26 S.D. 622 | S.D. | 1910
This cause is pending in this court upon an appeal from a judgment of conviction in the circuit court of Stanley county. It was fully submitted to. this court upon such appeal, and this court, on the 4th day of October, 1910, handed dow'n its decision, by which decision the judgment of conviction was affirmed. The opinion will be found in 128 N. W. 170. During the time allowed an appellant to petition this court for rehearing, the appellant, on November 1, 1910, filed a petition for a rehearing in this court, which petition has as yet not been acted upon. Upon the 7th day of November, 1910, appellant, upon the affidavit of B- B- Stephens, one of his counsel, and the affidavit of Thomas Boyd, procured from this court an order requiring the respondent herein to show cause why this case should not be remanded to the circuit court in and for Stanley county, for the purpose of permitting an extension of the time for a motion for a new trial of said cause on the ground of newly discovered evidence. Upon the return day of said order the respondent appeared, and, in resistance of the motion of the appellant, filed the affidavits of W. J. Boyd, Clara M. Boyd, and J. H. Johnson. It is this application to. have the cause remanded for the purpose above mentioned that is now before this court for consideration.
Four matters are presented upon this application: (1) The jurisdiction of the court to consider, the application; (2) the ma
By reference to the opinion of this court above referred to, it will be found that the only connection which the state claimed this appellant had with the commission of the crime for which he was convicted was through conversations, which it is claimed took place between appellant and one of the parties who actually stole the horses, for stealing which appellant was convicted. It will be also found that -the evidence upon which appellant was convicted had, several months prior to such conviction, been presented upon two separate trials of this defendant based upon other informations, so that appellant, long before the trial at which he was convicted, knew that the state was accusing him of having instigated the theft of the horses in question, and furthermore knew that it was claimed by the state that part, at least, of the conversation wherein appellant was accused of instigating the commission of this crime, was in the presence and hearing of one Thomas Boyd. Said Thomas Boyd was not a witness at any of the trials of this appellant; neither was any continuance sought by appellant in order to give him opportunity to procure the attendance of said Boyd. Defendant is now asking for this cause to be remanded, in order for him to apply to the trial court for new trial, and at such new trial to produce the evidence of said Thomas Boyd.
If -this cause had. not yet been -appealed, would the trial court be justified, upon the showing made before us, in granting a new
In Kendall v. Limberg, 69 Ill. 355, the court said: “It is lastly urged that the court erred in not granting a new. trial, on the ground of newly discovered' evidence. As to Williams, who was with defendant at the time of the alleged arrest, his testimony was known to defendant previous to the time of the trial, and it is only his place of residence that has been discovered since thé trial.' The defendant should have made an application for a continuance, on account of not having been able to procure the testimony of this-witness, instead of voluntarily going into the trial without it.” In Hartman v. Morning Journal Ass’11 (Com. PI.) - 19 N. Y. Supp. 401, the court said: “The testimony of a witness known to the defendant before the trial, and whom he could not find to- subpoena, is not newly discovered evidence. Ranous v. Trageser, 1 Wkly. Dig. 25; Hernstein v. Fleming, 1 Wkly. Dig. 401; Chamberlain v. Lind-say, 1 Hun, 231.. The evidence in question must, we. think, or
But even if it could be -claimed that the evidence of Thomas Boyd was newly discovered, yet the appellant has wholly failed to -show- -due diligence in his efforts- to produce sa-mev Thomas Boyd was in or near Stanley county shortly before this crime was com
The motion of appellant is denied.