Arnold v. Skaggs , 1868 Cal. LEXIS 143 ( 1868 )

By the Court, Sanderson, J.:

1. Taken in connection with the other evidence, which shows that the defendant appeared before the Board of Equalization and applied for a reduction of the assessment made upon the list given by Ingles as his agent, thereby ratifying the act of Ingles as his, we think the list itself was relevant and admissible. The listing of the property which was in use in the business by Ingles in the name of the defendant, the knowledge of the defendant that Ingles had so listed it, which is shown by his appearance before the Board of Equalization to procure a reduction of the assessed value of the property, tended directly to prove that the property used in the business was his, that Ingles was acting as his agent, and hence that the business carried on at the stables might also be his.

2. We cannot grant a new trial upon the ground that the Court found contrary to the evidence. The evidence is conflicting.

3. The showing in support of the motion, under the head of newly discovered evidence, is also insufficient.

The affidavit of the defendant fails to show that he was not cognizant of the alleged insanity of Arnold before or at the time of the trial. The affidavits of Frey and Thomas both show, it is true, that they informed the defendant of Arnold’s supposed insanity after the trial,' and that they verily believe that he (the defendant) was ignorant of it until so informed by them; but their belief is insufficient. The defendant himself should have spoken upon the question. The fact that he is silent justifies the inference that Frey and Thomas are mistaken in their belief, and that he knew all about the alleged insanity of Arnold at or before the trial. In applications of this kind, as well as in other legal proceedings, the best evidence within reach must be produced. The defendant must have known whether the alleged insanity of Arnold was first made known to him after the trial, and his sworn statement that it was would be much more satisfactory than the mere belief of any number of other persons. (Baker v. Joseph, 16 Cal. 180.)

As to the witness Covey, the ease not only fails to show diligence in preparing for trial, but shows negligence. He was called by the defendant as a witness, and examined at the trial; and the most ordinary diligence on the part of the defendant or his counsel would have led to the discovery of what further, if anything, he knew about the case. That the discovery, under such circumstances, was not made until after the trial, must be attributed to negligence.

What has been said about the defendant’s affidavit, so far as it relates to the witness Covey, is also true of it generally. It wholly fails to show any diligence on the part of the defendant in seeking, before the trial, the evidence which he claims to have discovered after the trial. But were it otherwise, the showing would still be insufficient also as to the other witnesses, Earl and Knox, for it is not supported by their affidavits. In asking for a new trial on the ground of newly discovered evidence, it is not sufficient for the moving party to state in his affidavit what, as he has learned, certain persons know about the matter, and how, as he believes, they will testify. He must produce the affidavits of the newly discovered witnesses as to what they know, and as to what they will testify. The affidavit of the party himself is but hearsay testimony, and cannot be received, unless, for good cause shown, the affidavits of the newly discovered witnesses cannot be obtained in time, or in such further time as may have been granted for that purpose. (Jenny Lind Co. v. Bowers, 11 Cal. 194; People v. DeLacey, 28 Cal. 590.) The affidavits of Earl and Knox were not obtained, nor was any. cause shown why they were not.

Applications for new trials upon the ground of newly discovered evidence must be looked upon with suspicion and disfavor, because the temptation to make a favorable showing after having sustained a defeat is great. A party who relies upon that ground must make a strong case, both in respect to diligence on his part in preparing for the trial and as to the truth and materiality of the newly discovered evidence, and that, too, by the best evidence which can be obtained. If he fails in either respect, his motion must be denied. The defendant in this case has failed in both.

Judgment and order affirmed.