Vardeman v. Byrne , 8 Miss. 365 ( 1843 )

Mr. Justice Clayton

stated the case, and delivered the opinion of the court.

It is insisted by the counsel of the defendants in error, that the newly-discovered testimony is merely cumulative, and the new trial was therefore properly refused. If it be true that the evidence is cumulative, then the decision of the circuit court was correct; for it is well settled, that a new trial should not be granted to let in evidence of that character. This makes it necessary to ascertain what is meant by cumulative evidence. We have found no better definition than that contained in the case of The People v. Superior Court, New York, 10 Wendell, 285; it is there said to mean, “additional evidence to support the same point, and which is of the same character with evidence already produced.” The same idea is more fully illustrated in Guyot v. Butts, 4 Wend. 579. It is there said, “the courts have sometimes used expressions seeming to warrant the inference that proof which goes to establish the same issue, that the evidence on the first trial was introduced to establish, is cumulative. If the evidence newly discovered, as well as that introduced on the trial, had a direct bearing on the issue, it may be cumulative; but we are not to look at the effect to be produced, as furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled. The kind and character of the facts make the distinction. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition, and yet be so dissimilar in kind as to afford no pretence for saying they are cumulative.” Hence, says Mr. Graham, “ although the new evidence be intimately connected with some parts of the testimony at the trial, yet if it be specifically distinct, and bear upon the issue, a new trial will be granted.” Graham on New Trials, 493.

Tried by this test, we do not think the newly-discovered evidence in this case can be regarded as cumulative. None of the witnesses, who testified on the trial, were present when the bill of exchange was drawn; their evidence is not consequently of the same kind with that which is now sought to be introduced. We think therefore that this is a case in which a new trial should be granted, and we so direct. We do this the more readily, since there was one mistrial in the cause.

We do not perceive any objection to the charges which were given by the court to the jury, upon the trial; we reverse the decision only upon the ground of error in refusing the new trial.

Judgment reversed, and venire de novo awarded.