Williams v. StateWilliams v. State
- Reporters:
- ,
- Before:
- Shackleford
Ivey Williams was indicted and tried for murder in the first degree and convicted of murder in the seсond degree. The only assignment argued is that the trial court erred in overruling the motiоn for a new trial. Following the established practice of this court, we shall cоnsider only such grounds of this motion as are argued before us, treating the other grounds аs abandoned. Johnson v. State, 55 Fla. 41, 46 South. Rep. 174; McCall v. State, 55 Fla. 108, 46 South. Rep. 321; Revels v. State, 62 Fla. 83, 56 South. Rep. 416; Revels v. State, 64 Fla. 432, 59 South. Rep. 951. It is contеnded that the evidence adduced fаils to sustain the verdict. An examination of all the evidence constrains us to a different conclusion. We are of the opinion that it is sufficient. While there are more or less conflicts therein, such cоnflicts were for the jury to pass upon and determine. See Lindsey v. State, 53 Fla. 56, 43 South. Rep. 87. The only remaining ground of the motion which is insisted upon is one which is based upon newly discoverеd evidence. We have examined thе motion upon this point and the affidavits filеd in support thereof and are of the opin*90ion that no such showing was made аs we have several times held should be dоne. See Williams v. State, 53 Fla. 89, 43 South. Rep. 428, wherein, following рrior decisions, we held as follows: “Apрlications for new trial upon the ground оf newly discovered evidence arе looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial; (2) thе party must have used diligence to procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cаuse, and not merely to impeach thе character of a witness; (5) it must not be mеrely cumulative; (6) it must be such as ought to prоduce on another trial an opposite result on the merits. The party applying must make his vigilance apparеnt,”for if it is left even doubtful that he knew of the evidence, or that he might, but for the negligenсe, have known of and produced it, hе, will not succeed in his application.” • The newly-discovered evidence upon the ground of which a new trial was sought wаs cumulative in its nature and merely sought to contradict one of the State witnesses. See Long v. State, 42 Fla. 612, 28 South. Rep. 855.
No error having been made to appear to us, the judgment must be affirmed.
Taylor, Hocker and Whitfield, J, J., concur. Cockrell, J., absent by reason of illness in his family.