Powell v. Commonwealth , 133 Va. 741 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

In the view we take of the case, it will be'necessary for us to consider only 'one of the assignments of error, namely:

1. Did the court err in refusing to set aside the verdict and grant a new trial on the ground of the after discovered evidence disclosed by the affidavit above quoted, which, if true, shows that the testimony of the principal witness for the Commonwealth, on the vital question in the case, of whether there was provocation which justified the shooting, on which the verdict in large part must have been based, was perjured testimony?

This question must be answered in the affirmative.

The general rules governing the subject of granting a new trial are well settled. Barsa v. Kator, 121 Ya. 290, 93 S. E. 613, and authorities cited. The newly discovered evidence in question meets all of the requirements of these rules, unless it be the requirements of the fifth and last rule, on the subject of what must be the character of the newly discovered evidence, namely: that it “must go to the merits of the case and not merely to impeach the character of a former witness.” With respect to the meaning of this rule, the following must be borne in mind:

It appears from the decisions on the subject that the newly discovered evidence which is considered as falling within the condemnation of the rule just mentioned, is confined to testimony to the bad character of the witness, or which tends to impeach the witness by disproving facts to which he has testified, by means of evidence of other inconsistent facts; Thompson’s Case, 8 Gratt. (49 Va.) 637; Brugh v. Shanks, 5 Leigh (32 Va.) 598; Brown v. Speyers, 20 Gratt. (61 Va.) 296; Read’s Case, 22 Gratt. (63 Va.) 924; Cody v. Conly, 27 Gratt. (68 Va.) 313; Gillilan v. Ludington, 6 W. Va. 128, 145; State v. Betsall, 11 W. Va. 703; Hall v. Lyons, 29 W. Va. 422, 1 S. E. 582; Carder v. Bank, 34 W. Va. 41, 11 S. E. 716; Bloss v. Hull, 27 W. Va. 503; Livingston v. Hubbs, 3 Johns. Chy. 124; or which consists merely in showing inconsistent statements of the witness made prior to the trial and not under oath; Shields v. State, 45 Conn. 266; Arwood v. Slate, 59 Ga. 391; or merely the bias of the witness; Com. v. Waite, 5 Mass. 261; Hammond v. Wadhams, 5 Mass. 353; Com. v. Drew, 4 Mass. 391; State v. Carr, 21 N. H. 166, 53 Am. Dec. 179; and the general rule is that a new trial will not be granted where the newly discovered evidence is of any of the kinds mentioned. This is declared by the authorities to be a rule of policy, intended to secure care and vigilance and prevent parties from coming forward subsequently with evidence which close investigation would have disclosed at the time; for it is said that a failure of justice in a particular instance is not so great an evil as that there should be no certain end to litigation. 1 Barton’s Chy. Pr. 46-7. But where the newly discovered evidence consists of statements of the witness himself unquestionably made and made after the former trial, under circumstances which repel the idea that they are collusive, that is, designed to furnish ground for the motion for a new trial, and the statements, if true, are sufficient to show that the verdict was based on mistaken or perjured testimony, a different situation is presented; and the weight of authority seems to be in favor of the view that such evidence is not within the category of evidence which falls within the condemnation of the aforesaid rule, but goes to the entire destruction of the evidence on which the verdict was founded, by showing that it was based on mistake or perjury; so that, in reality, because of this, the case has never been tried on its merits, and, hence, such newly discovered evidence goes to the merits of the case; so that in such a case a new trial should be granted. And this rule is the same at law upon an application for a new trial before judgment, as it is in equity upon a bill filed to obtain a new trial after judgment, on the ground of newly discovered evidence showing mistake, fraud, or perjury. Fabrilius v. Cock, 3 Burr. 1771; Peagram v. King, 9 N. C. 605; Gillilan v Ludington, supra (6 W. Va. 128); Fletcher v. People, 117 Ill. 184, 7 N. E. 80; Mann v. State, 44 Tex. 642; Dennis v. State, 103 Ind. 142, 2 N. E. 349; State v. Powell, 51 Wash. 372, 98 Pac. 741; Bussey v. State, 69 Ark. 545, 64 S. W. 268; State v. Moberly, 121 Mo. 604, 26 S. W. 364; 20 R. C. L. see. 80, p. 299, and authorities cited.

Fabrilius v. Cock, supra (3 Burr. 1771), was an action of trover, in which a verdict had been given for the plaintiff for 2400 pounds, at nisi prius, before Lord Mansfield. The defendant moved for a new trial, upon the ground “that the whole was a fiction, supported by perjury, which he could not be prepared to answer. That since the trial many circumstances had been discovered to detect the iniquity and to show the subornation of the witnesses.” The report of the case states that the court, “after a very strict scrutiny * * granted a new trial.” This action of the court was affirmed by the Court of King’s Bench.

In Peagram v. King, supra (9 N. C. 605), a bill in equity was filed, seeking a new trial of an action at law, in which the verdict was based on the testimony of a witness, Jenks, who subsequently to the trial, during his last illness, confessed that he perjured himself in the testimony given by him on the trial, being incited thereto by the promise of a bribe from the defendant. The court, in the course of the opinion, says: “It is in general true, both at law and in equity, that a new trial will not be granted on the ground of newly discovered evidence, where it goes merely to impeach the testimony of a witness at a former trial, or to let in cumulative evidence as to matter which was principally controverted at the former trial; but that is very different from newly discovered evidence, which goes utterly to destroy the former testimony and cut it up by the root, by showing that it was founded in perjury. Accordingly, both courts furnish instances of a new trial being granted for the latter cause.” After citing cases, the opinion continues as follows: “No evidence could have been given of the dying declarations of Jenks, wrung from him in an agony of remorse, when he had no motive to misrepresent; * *. It is admitted (Prec. in Chan. 193), that if a witness, on whose testimony a verdict has been given was convicted of perjury, a new trial may be granted. The death of Jenks, before the complainant knew by what witness his declaration could be shown, rendered a prosecution impossible, and brings the ease within the reason of the decision.” The court decided “that a new trial be had in the court whence the case at law came *

In 20 R. C. L., supra (see. 80, p. 299), this is said: “Where there is no reason to suspect certain testimony to be perjured, and no laches is shown, the courts will generally grant a new trial, if, after the trial, evidence of its perjured character is discovered, and it is as to a material issue, or the verdict is based principally on such testimony. Thus where a material witness admits under oath that his testimony was mistaken or false, a new trial has in a number of cases been granted.”

It is true that courts of the highest authority have taken the view, at least in civil cases, that a judgment or decree, although obtained by false swearing, will not be set aside, unless the fraud is extrinsic or collateral to the matter tried by the first court. See McClung v. Folks, 126 Va. 259, 101 S. E. 345, and authorities cited. What is fraud extrinsic or collateral, was thus defined by the court below in the case of United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93: “Keeping the adversary’s witness from court; secreting or purloining his testimony; or any conduct of the kind mentioned (which) would tend to prevent a fair trial on the merits, and thus to deprive the innocent party of his rights. So if a judge sits when disqualified from interest or consanguinity; if the litigation be collusive; if the parties be fictitious; if real parties affected are falsely stated to be before the court.” This definition is in substance approved by the holding of the Supreme Court in the case, as set forth in the learned and instructive opinion delivered by Mr. Justice Miller. It would seem, however, that the doctrine of intrinsic and extrinsic fraud is, after all, not much, if at all, different from the rule of policy above referred io, which refuses a new trial on the ground of after discovered evidence, where the evidence is of the character mentioned above as falling within the condemnation of the fifth rule on the subject of granting of new trials on the ground of after discovered evidence, other than proof of perjury or mistake, where such proof has come into existence after the former trial. The latter character of proof tends to show that no fair trial on the merits has been had. It is matter not suspected to have existed, and so impossible to have been considered or to have been “matter tried by the first court” which the courts have in mind which adhere to the intrinsic and extrinsic fraud doctrine. (See opinions of Chief Justice Shaw in the leading case on the latter subject of Greene v. Greene, 2 Gray (Mass.), 361, 61 Am. Dec. 454.) Hence, the granting of a new trial on the ground of proof of perjury or mistake, where the evidence of it has come into existence since the former trial, and appears to be true, not to be collusive, and ought, if true, to produce a different verdict on a new trial, does not violate the doctrine just mentioned.

It is further true, however, that even within the narrow limits of the class of cases in which, by the weight of authority, a new trial should be granted for after discovered evidence of mistake or perjury, the courts act with great reluctance and with special care and caution. The courts properly require that it shall be made to appear affirmatively that the new evidence tending to show the mistake or the perjury, beyond question exists and is not a mere matter of belief or opinion, before they will grant the relief in such cases. Where the ground is perjury, the old rule was that the witness must appear of record to have been convicted of the perjury or his death must have rende’red conviction impossible, before it could be regarded as good ground for the new trial. 20 R. C. L., sec. 80, p. 300. The modern rule is not so strict. By the preponderance of authority it seems to be sufficient if the court has evidence before it which establishes the-existence of the evidence relied on to show the perjury or mistake, in such a clear and convincing manner as to leave no room for doubt as to the existence of the-evidence so relied on, and the court is satisfied that the evidence is not collusive, that it seems to be true, and ought, if true, to produce on another trial an opposite-result on the merits.

In the case in judgment the evidence in support of the motion for a new trial consists of the statement of the witness on the former trial contained in the affidavit of an apparently reliable and disinterested person. The attorney for the Commonwealth introduced no counter affidavit, or other evidence, to controvert the truth of the affidavit. That being so, we-must hold, on the case as- presented to us, that the statement contained in the affidavit is true.

As held in Piper v. State, supra (57 Tex. Cr. R. 605, 124 S. W. 661): “Where the affidavit, in support of the motion for a new trial on the ground of newly discovered evidence, averred facts with great particularity, so that the State could easily meet it had the facts been untrue, and there was no attempt by the State to meet it, the court, on appeal, will presume-that the matters are correctly stated in the affidavit.” The same is true in the instant case.

The material fact, stated in the affidavit aforesaid, is that the widow of the deceased, the day after the trial which resulted in the conviction of the accused, made a statement which bears internal evidence that it was not collusive, — that is, was not made to serve as the-ground for a new trial of the accused — in which she .said, in substance, that the father of the accused would have been struck by the deceased with the axe and thereby killed or received great bodily harm, but for the shooting of the deceased by the accused; that is to say, that the shooting was done by the accused in the necessary defense of his father and in order to save him from becoming the victim of a felony about to be •committed by the deceased which was imminent and evidenced unmistakably by an overt act. This is in direct conflict with the testimony of this witness on the trial. And as, upon the record before us, we must regard it as true that she made this statement, we are forced to the conclusion that the testimony on the trial of the witness in question, upon this vital feature of the case, appears to have been willfully false.

It is true that there was before the jury the testimony for the Commonwealth of the boy, the nephew of the deceased, to the same effect as the testimony of the widow, on which the verdict might have been found. And the general rule is that if, eliminating the perjured evidence, there is still other evidence sufficient to support the verdict, a new trial will not be granted. 20 R. C. L., sec. 80, p. 300. But that is where the court can fairly conclude that the jury in such ease would have come to the same conclusion had the perjured testimony been eliminated. We .are' unable to reach that conclusion in the case in judgment. On account of their relationship, their .association and their comparative ages, we cannot feel that the testimony of the boy was wholly uninfluenced by that of the widow. And in view of the statement of the latter, disclosed in the affidavit aforesaid, the ease is one in which the newly discovered evidence indicates the existence of a .purpose on the part of the widow to procure the conviction of the accused upon fabricated evidence. This, if true, ought to produce on another trial an opposite result on the merits, and brings the case within the principle of the holding of this court in Johnson’s Case, 104 Va. 881, 52 S. E. 625.

In the case just cited the newly discovered evidence concerned, indeed, facts of which evidence existed prior to the trial, some of which the accused by the exercise of due diligence might have discovered prior to the trial, as appears from the evidence itself, the affidavit of the accused to the contrary notwithstanding. And that case is regarded as an exception to the general rule in that feature of it. Burks’ PI. & Pr. (new ed.), p. 556. As said, however, on the same page of the valuable work just cited: “Applications for new trials are addressed to the sound discretion of the court, and are based on the ground that there has not been a fair trial on the merits.” And, after stating what is said to be the general rule on the subject, the same authority adds this: “Exceptional cases may arise when the courts will find it necessary to depart from it.” The authorities generally agree with this view. But in granting a new trial upon the ground that the newly discovered evidence, if true, indicated a purpose on the part of a principal witness' for the Commonwealth “to compass the conviction of the accused upon fabricated evidence (which newly discovered evidence) would reasonably have exerted a favorable influence with the jury in his behalf,” as was done in that case, we believe that the ruling was not an exception to, but was in accord with the weight of authority on the subject.

A new trial will, therefore, be granted.

We will add, however, that what we have said above must not be understood as deciding that the witness in question did in fact make the statement contained in the affidavit aforesaid, or, if she did, that she may not be able to give some satisfactory explanation of it consistent with the veracity of whatever may be her testimony on the new trial; nor that a jury may not be warranted in convicting the accused upon the other testimony in the ease, with that of the widow eliminated, if such should be the situation upon a new trial. The whole subject will be at large and open to full investigation upon a new trial, and what we have said in this opinion as to the credibility of the testimony should not be stated before or allowed in any way to affect the jury upon a new trial.

Reversed and a new trial granted.