159 Ky. 462 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
The appellant was convicted in the Livingston Circuit Court under an indictment charging him with the murder of Frank Longnecker and his punishment fixed by the verdict of the jury at confinement in the penitentiary for life. He prosecuted an appeal to this court which resulted in the affirmance of the judgment. (See Wellington v. Commonwealth, 158 Ky., 161.)
Following the affirmance of the judgment of conviction by this court, appellant filed in the court below a petition seeking the vacation of the judgment and asking a new trial upon the ground of newly-discovered evidence, information of which, it was alleged, he did not have and could not by any sort of diligence have obtained until after his conviction in the court below. Three affidavits, made by the persons claiming to be in possession of the newly-discovered evidence, setting forth the facts to which they would testify, were filed with the petition. The circuit court, upon considering the statements of the petition and affidavits, refused to grant appellant a new trial as therein prayed and dismissed the petition. From the judgment manifesting these rulings this appeal is prosecuted.
This proceeding is an attempt to obtain a new trial under the provisions of sections 344-518, Civil Code, which apply alone to civil actions and proceedings. These sections cannot be made to apply to criminal cases nor do the authorities cited in the brief of appellant’s counsel so hold.
Following his conviction in the court below, and at the same term, appellant made a motion for a new trial pursuant to the provisions of sections 271-273, Criminal
The Civil Code provides two modes of applying for a new trial in civil actions and proceedings. One of these is by motion and'grounds filed at the term at which the verdict or decision is rendered, as provided by sections 340-342, inclusive, Civil Code; the other by petition filed after the term, as provided by sections 344-518, Civil Code. But the only provisions of the Code of Practice authorizing the granting of new trials in criminal cases are contained in sections 271-274, inclusive, of the Criminal Code. Section 271 requires that the application for a new trial must be by motion; section 273 that it must be made at the same term at which the verdict is rendered, unless the judgment be postponed to another term, in which case it may be made at any time before judgment; section 274, that the grounds upon' which the motion for the new trial is made must be stated in writing and filed at the time of making the motion. The remedy thus afforded by the sections of the Criminal Code, supra, is exclusive. It is contemplated by the law that criminal cases are to be speedily disposed of, and therefore the procedure prescribed by the Criminal Code for obtaining a new trial is the only •one known to the law.
We apprehend that no decision of this court will be found in which it was held that the defendant in a criminal case should he allowed a new trial upon his application therefor hy petition filed after the term of the court at which he was convicted and judgment entered showing such conviction,- for the Criminal Code provides no such method of procedure. It follows from what we have said that the alleged newly-discovered evidence presented hy appellant’s petition cannot he considered for any purpose.
The judgment of the circuit court being in accord with the conclusion we have expressed, it is affirmed.