123 Iowa 427 | Iowa | 1904
But two questions are presented on the áppeal- — one the failure of the court to give an instruction asked by the defendant, and the other the correctness of the court’s ruling in denying a petition for a new trial, filed by the defendant, based upon newly discovered evidence.
The evidence offered in support of this petition clearly shows that the prosecutrix went to defendant’s house on August 25, 1901. This was finally admitted by the prosecutrix herself, after hearing the testimony of the witness whose evidence it is claimed was newly discovered. This witness testified that he fixed the time with reference to his mother’s birthday celebration, which occurred on August 25, 1901; that he met the father and the mother of the prosecutrix on that day, and that they told him their daughter was going to defendant’s place on that day. On this hearing prosecutrix'admitted that she went to defendant’s place on August 25, 1901. It was also shown that, before the trial of the case, prosecutrix’s mother asked the witness whose evidence it is claimed was newly discovered as to the date of the birthday celebration. ■ The Avitness said that he gave her the exact date, but the mother testified that his answer was that he did not know. - From the evidence offered in support of the peti
Neither the date claimed by the state nor that presented by the defendant on the original hearing, was the true one. We are disposed to acquit all parties of any fraud or intentional misrepresentation in the matter, but it now appears that the state’s witnesses as to time were each and all mistaken as to the date when the alleged intercourse occurred. According to their version of the matter, the intercourse took place on or about October 20, 1901, but it now appears, without conflict, that it was not later than September 14th. Time was an important element in the case, and as the jury never had an opportunity to pass upon the matter according to the very truth, we think a new trial should have been granted, unless it be for some of the reasons suggested by appellee’s counsel in argument. One of these is that the testimony of tbe witness whose evidence it is claimed was newly discovered was cumulative, and therefore not sufficient to justify a new trial. We do not think it was cumulative in character. Boggess v. Read, 83 Iowa, 548.
On the original trial, no witness testified to any such circumstances as were detailed by tbe witness Tonn, whose evidence it is claimed was newly discovered. True, the effect of this witness’ testimony was to fix the time when the
Further, it is argued that there is no showing of diligence on the part of the defendant in discovering the witness Tonn before the trial of the original case. As to this, there was nothing in the circumstances surrounding the case which would even suggest to the defendant that Tonn knew anything of the case. Defendant knew, of -course, that the time element was important, but he did not know, and had no reason to believe, that the witness Tonn had ever had any conversation with the prosecutrix’s father and mother regarding the fact that their daughter was to go to defendant’s house on a certain day. No doubt, defendant had many opportunities to inquire of the witness as to what he knew of the case, but there was nothing which would even suggest to him the propriety of making such inquiry. Sufficient diligence is shown.
It must not be assumed that a jury on -a new trial should come to a different conclusion from that reached on the original submission — that point we do not determine. Our holding is that defendant has the right to the verdict of a jury on what are now conceded to be the facts as to time. This he has never had. His failure to secure it was due to no fault of his own, and we think the petition for a new trial should have been granted. — Reversed.