Lead Opinion
It is therefore ordered that this case be remanded to the court below for the purpose of supplying a duly certified copy of the minute entry of September 27, 1927, showing that said indictment was returned in open court, if any such entry there be, or otherwise to establish contradictorily with the defendant that said indictment was duly returned in open court on said day, if such be the fact, and to supplement the minute entries of that day accordingly; the whole to be returned to this court forthwith.
O'NIELL, C.J., dissents, being of the opinion that the verdict should be set aside, not only for the reason for which the case is being remanded, but because of the refusal to grant a new trial because of newly discovered evidence.
Addendum
The state has now produced and filed a duly certified copy of the minutes of the court below, showing that the indictment *Page 659 herein filed on September 27, 1927, was duly presented in open court on that day.
As we have said, the defendant appeals from a conviction for murder and sentence of death.
He complains only of the overruling of his motion for a new trial. The grounds set up for a new trial were (1) that the jury returned its verdict within five minutes after the case was submitted; and (2) alleged newly discovered evidence.
The trial judge correctly says that there is no law which requires a jury to deliberate any longer than may be necessary to agree upon a verdict.
The alleged newly discovered evidence is that of one witness who would swear to an alibi for defendant. But the motion itself shows that defendant had already produced some 12 to 15 witnesses to prove said alibi, and the trial judge did not abuse his discretion when he refused to grant a new trial on the ground that said evidence was merely cumulative, and "similar to other evidence disregarded by the jury."
O'NIELL, C.J., dissents.