Boyd v. Commonwealth , 394 S.W.2d 934 ( 1956 )

MONTGOMERY, Judge

(dissenting).

I cannot agree with the majority opinion because the appellant failed to show an exercise of proper diligence in obtaining the testimony of Roger Hansbrough, and I think the trial judge exercised a proper discretion in denying the motion for a new trial.

The facts, as stated in the majority opinion, show an utter lack of diligence on the part of appellant. He had more than three months’ notice of the trial date. He did not avail himself of the use of a subpoena to secure Hansbrough’s presence at the trial. He made no motion for a continuance before trial because of the absence of Hans-brough. These things are matters of record which did not have to be shown by affidavit or otherwise. The question of newly discovered evidence was raised three days after the trial, but there is no showing that the evidence was newly discovered or that appellant had not known about it in time to have Hansbrough testify at the trial. The failure to show proper diligence has been held to be fatal. Chambers v. Commonwealth, Ky., 264 S.W.2d 61; Bales v. Commonwealth, 313 Ky. 272, 231 S.W.2d 61.

Further, I cannot agree that the claimed newly discovered evidence meets the standard required in Kinmon v. Commonwealth, Ky., 383 S.W.2d 338, and the cases cited therein.

The trial judge has a broad discretion in granting or denying a new trial. This Court should not interfere except when such discretion has been clearly abused. Combs v. Commonwealth, Ky., 356 S.W.2d 761; Commonwealth, etc. v. Shelton, Ky., 248 S.W.2d 895. I do not think that the trial judge abused his discretion here.

For these reasons I dissent.

STEWART, J., concurs.