State v. King

73 P. 1045 | Utah | 1903

McCARTY, J.

After stating the facts, delivered the opinion of the court.

We are of the opinion that a new trial should have been granted defendant King. It is evident from the record in this case that, without the testimony of Wit-tenberg and Meyers, it is extremely doubtful whether King could have been convicted, as there is no evidence in the record which, standing alone, separate and apart from the evidence given by said Wittenberg and Meyers, would or could have established his identity as one of the men who participated with defendant Lynch in the commission of the crime.

It is insisted by the Attorney-General that the evi-deuce set out in the affidavits of Wittenberg and Meyers is impeaching, and, therefore, under the general rule that a new trial will not be granted on the .■ground of newly discovered evidence which only tends lo impeach, it ought not to be considered. It appears that no undue influence whatever was used to induce Wittenberg and Meyers, or either of them, to change their testimony and- make the affidavits referred to. The affidavits having been made voluntarily, and apparently for no purpose except that justice may be done, •the evidence is not impeaching in the sense that that term is generally used and understood. Neither is it cumulative, and its very nature placed it beyond the range of possibilities for defendant King to have produced it at the trial. While courts generally look with disfavor and with some degree of distrust upon applications for new trials based on newly discovered evidence, yet where, as in this case, it clearly appears that the newly discovered evidence would probably change the result, a new trial ought not to be denied. State v. Campbell, 25 Utah 342, 71 Pac. 529 ; State v. Haworth, 26 Utah 310, 73 Pac. 413; Dennis v. State, 103 Ind. 142, 2 N. E. 349; Mann v. State, 44 Tex. 642. In the case of State v. Moberly, 121 Mo. 604, 26 S. W. 364, the court, in passing upon the sufficiency of‘an affidavit similar in character to those filed in this case, said: '“This affidavit, which is to be taken as prima facie true, certainly sets forth newly discovered evidence which no diligence or vigilance could discover — evidence which, if delivered before a jury, would certainly tend very strongly to affect the verdict of the jury. Such evidence is by no means merely cumulative. It is original and independent evidence, and defendant had the right to have it submitted to the jury to pass upon and determine its truth or falsity.”

Viewing the case from the entire record as it is now made up, we are of the opinion that the guilt of the defendant King is surrounded with too much uncertainty to warrant the court in refusing him a new trial. The case is therefore reversed as to the defendant Robert L. King, with instructions to the trial court to set aside the judgment against him and grant a new trial; bnt the judgment against the defendant James Lynch is affirmed, and the ease remanded for further proceedings in accordance with law.

.BASKIN, C. J., and BARTCH, J., concur.