State v. Skipper ( 1927 )

O’NIELL, O. J.

The appellant was convicted of the offense of manufacturing whisky for beverage purposes. He relies upon two bills of exception. The first exception was taken to a ruling sustaining an objection of the district attorney to the introduction in evidence of an affidavit made by the defendant’s wife, swearing that the information which she had given to the officers and on which they found the evidence on which the defendant was prosecuted and convicted was false.

We agree with the district judge that the affidavit was not admissible in evidence. That is not the way to introduce testimony in any case. Besides, the affiant was present at the trial and testified in her husband’s behalf.

The second bill of exceptions was reserved to the overruling of a motion for a new trial on the ground of newly discovered evidence. The two witnesses alleged to have been newly discovered were the defendant’s son's, who lived with him. It was alleged in the motion that the two newly discovered witnesses would swear that the defendant’s wife had an ungovernable temper and frequently made threats against him. We agree with the district judge that the alleged newly discovered evidence could have been discovered before the trial with ordinary diligence, and that the evidence was probably not in fact newly discovered. Besides, the case, being a misdemeanor, was triable by the judge without a jury, and, if he believed that the alleged newly discovered evidence would not have affected his judgment on the question of guilt or innocence, he was quite right in refusing to grant a new trial for the purpose of hearing the evidence. The trial judge has some discretion in that respect, even in cases that are tried by a jury.

The conviction and sentence are affirmed.