69 W. Va. 260 | W. Va. | 1911
Burt Poe was indicted for stabbing William A. Rogers and was convicted by a jury, and was sentenced to the penitentiary for two years.
Poe made a motion for a new trial on the ground that the verdict was contrary to the evidence; but he does not rely upon that in this Court. There is a large volume 'of conflicting evidence, and it is useless to sa3r anything more as to this.
The only point relied upon here is the refusal of the court to grant a new trial on newly discovered evidence. This motion was based on two affidavits. Poe’s affidavit says that be has learned from a good, reliable and creditable source that Joseph Shackelford will testify upon retrial that he was present during the difficulty between W. A. Rogers and Poe and saw Luther Rogers cut and stab W. A. Rogers. Poe does not name the good, reliable and creditable source of such information, unless it be Benjamin F. Bailey. Poe’s affidavit says that he had tried to get an eye witness to the trouble and that his first information that an eye witness to the crime could be produced
Another ground is presented to us for a new trial. On the hearing of the motion Mary A. Rogers, mother of Luther Rogers, gave oral evidence that .her son Luther confessed to her that he cut W. A. Rogers and that Poe did not do so. That is mere hearsay. Is the confession of an outside party that he committed a murder charged to another admissible? Surely not. Can such a hearsay statement acquit a prisoner on trial ? We find it stated in 6 Ency. of Evidence, 752, that, “ifeither the extrajudicial admissions or confessions of third persons, though made as dying declarations, nor their acts and conduct in- the nature of admission, are admissible to show that they and not the defendant are guilty of the homicide charged.” Many cases from other states are.there cited and support the text. We find in the case of Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636, that a letter vuitten by another to a third person containing admissions that the writer committed the murder is incompetent evidence for the prisoner, and so of like conversation overheard between other persons. The supreme court of Georgia in a note found in said'American Report ridiculed such propositions. Luther Rogers was'present when his mother gave this testimony on the motion for a new trial and said nothing. He did not corroborate his mother. He was not ca-llqd to state that he could or would give such evidence. He did not so state under oath or even make an unsworn statement that he could or 'would give such evidence. The cutting was at a gathering at a school house on the occasion of a Christmas tree, and numerous persons present, yet-none of the many witnesses hint that Luther Rogers did the act. Luther Rogers was arrested and on legal examination on
Judgment affirmed. Affirmed.