State v. Gregory, 141 N.W. 365

State v. Gregory

141 N.W. 365 | S.D. | 1913

WHITING, P. J.

The defendant was convicted of the stealing of two horses from one G. A. Brinkman near the town of Burke, Gregory county, S. D.; the stealing occurring some time after dark on October 3, 19x1. From the judgment of conviction and an order denying a new trial the defendant has appealed, assigning several alleged errors. The only assignment meriting any consideration is one assigning as error the order of the court denying a new trial, which order was asked for upon the ground of newly discovered evidence.

*430To get a clear understanding of the merits of this assignment, a knowledge of some of the evidence appearing- in the record is essential. The state offered evidence tending to -show that appellant', on the morning of October 2d, hired a team at a livery stable in Gregory, and that, upon returning in the evening he stated to the liveryman that he “had been down to Mr. Brink-man’s.” The liveryman described the team, and Brinkman as well as his son testified that appellant, driving a team answering the ■same description, came to their place on October 2d and stayed there to dinner. The son testified that appellant stated that he hired the team of the above-mentioned liveryman, and also testified that appellant fed his team in the barn in which the stolen team was then standing. The evidence tended to prove that the horses were -stolen from this barn prior to 9 o’clock of the night of October 3d., Another witness testified that he saw appellant in Burke on October 3d; that he -had a conversation with him; and that, on the evening of October 3d and not far distant from the Brinkman place, he saw him walking in a cornfield which extended to the Brinkman place. There was no direct evidence connecting appellant with the theft of these horses; his conviction resting mainly upon- the evidence hereinbefore referred 'to- and upon the fact -that the stolen property was found in his possession at Omaha, Neb., something like a month after the theft. Upon the- trial appellant appeared without an attorney. There is no record of an application for a continuance for the purpose of procuring witnesses, though appellant, when on the stand as witness- in his own behalf, testified to the fact that he had requested .that certain witnesses be procured. Hie testified that he did not hire the team of he liveryman; that h-e never was at the Brinkman place; that on October 2d he did hire a team of a party in Gregory with whom he was then boarding; and that, upon that day, he drove into- the country from Gregory but in a direction opposite from that in which the Brinkman-s lived. He denied absolutely being seen by any party at Burke or near there. H]e swore that, on the evening of the day when h-e drove into the country, which would be on the evening of October 2d, he returned to Gregory, and that on the next morning, being the morning of October 3d, he took the train and left this state.

In support of his motion for new trial, appellant made an *431affidavit-to the effect that, on October 2d, the day when, according to his evidence upon the trial, he was driving through the country, he remained in Gregory all day; that the morning of Octooe'r 3d he hired a team -and returned with it that evening; that he remained that night with the people with whom he had been boarding; and that he took the train the morning of October 4th. In such affidavit he swore that these facts could be proven by the testimony of the man with whom he boarded and by that of his wife; that he would produce this testimony upon another trial; and that, in the light of such testimony, the result of a new trial would be his acquittal. He submitted the affidavits of the parties with whom he claimed to have boarded. These affidavits are to the effect that appellant hired a team of horses of the affiants on the morning of October 3d; that he returned with the same the evening of the said date; that he remained with affiants that night; and that he took the train for the east the next morning.

Appellant’s excuse for not asking for a continuance to procure these two witnesses was that he had been placed upon his trial the next day after his preliminary examination; that he was a stranger in the community; that he did not remember the names of said \Vitnesses; and that, until the trial, he did not have any knowledge that the state would offer the evidence of' the liveryman to attempt to 'connect him with the alleged trip-,to the Brink-man place on October 2d.

[1-3] Two facts appear from the foregoing: First, if the affidavits offered by appellant speak the truth, he testified falsely at the trial when he swore that he hired the team and drove into the country on October 2d and left the country the following morning. Second, appellant was asking for a new trial, not upon the ground of newly discovered evidence, but upon the ground of absent witnesses known to him. It is apparent from his testimony at the trial and also from his affidavit that appellant, at the time of the trial, knew of these witnesses and what they must swear to if the .facts were as he claimed; or, in other words, he knew of this evidence at the time of the trial, and it is a case of failure to ask for a continuance for the purpose of procuring known testimony, thus presenting the same question that was before this court in the case of State v. Barnes, 26 S. D. 622, 129 N. W. 116, wherein it was said: “It must be conceded *432that the appellant must show * * * that the evidence in question is newly discovered and is material, and that he has used diligence to procure- the same. If he has failed in any one or more of these matters, he is not entitled to the relief sought. * * * It is therefor a case, not of newly discovered evidence, but of a material witness not present at the trial. If appellant wanted the witness at the trial, he should have made a showing for continuance, and, if the state would not concede that the witness if present would testify as claimed by appellant, and the court had refused a -continuance, an exception to the ruling of the court would have saved the appellant’s rights upon an appeal. 29 Cyc. 885, 893.”

The granting o-f a new trial, asked for upon the ground of newly discovered evidence — even if such evidence is in the true sense newly -discovered — is a matter resting within the discretion of the trial court, and, unless it clearly appears that such discretion has been -abused, the -decision of such court should not be disturbed. In this case, where the feviden-ce offered is not newly discovered, and where, even if i-t were newly discovered, it would tend in a material respect to dispute the applicant’s own testimony given by him before a jury, the, trial court did not abuse its discretion in denying the application.

The judgment and order apjpealed from are affirmed.