State v. Allen

By the WHOLE COURT.

OVERTON, J.

Defendant was tried and convicted on a bill of information charging him with having had on'November 19, 1923, unlawfully in his possession, for sale for beverage purposes, intoxicating liquor, commonly called whisky, the said intoxicating liquor having been unlawfully acquired. He was sentenced to 60 days in jail, fined $500, and in default of the payment of the fine to 6 months’ additional imprisonment.

Defendant has filed no brief. He reserved but one bill of exception to the proceedings had; and that bill is one to the overruling of a motion for a new trial. The motion is based on the following grounds, to wit:

(1) On the ground that the conviction is contrary to the law and the evidence.

(2) On the ground that, he has discovered new evidence.

Defendant attached to and made part of his motion for a new trial several affidavits and a certificate showing the alleged newly discovered evidence.

One of these affidavits is to the effect that, if granted a new trial, defendant will be able to show by his wife and sons that he left his home at 8 o’clock a. m. on June 19, 1923, the day upon which it is alleged that he illegally possessed the liquor, on a trip to a point near Bradley, Ark., at which point he arrived at 10 a. m. This affidavit is signed by defendant’s wife and his sons. Another of the affidavits attached tb the motion is to the effect that on this trip defendant stopped for a short while and conversed with some friends. This affidavit was made by the friends with whom the conversation was had.

Two of the affidavits made part of the motion are to the effect that the parties who-signed them have known defendant for a number of years, and have had no occasion to believe that he would misrepresent anything, and have never known him to drink whisky or to deal in it.

The certificate attached to the motion shows that the mayor of Springhill, La., convicted four persons, naming them, oh May 17, 1923, for being drunk and disorderly. The certificate shows nothing further, and the motion does not show the connection that the certificate has with the case.

Opinion.

The first ground of the motion for a new trial presents nothing, for review on appeal, since we are without power to review the evidence on the question of the guilt or innocence of the accused in order to determine whether the verdict was justified or not. This rule is too well established to require the citation of authority.

In so far as concerns the second ground, the motion for a new trial fails to set out or show in any manner that, notwithstanding the exercise of due diligence, defendant failed to learn of the alleged newly discovered evidence before or during the trial, but discovered it only after trial. The law is that the motion must show the exercise of due diligence. Marr’s Criminal Jurisprudence (2d Ed.) § 711, p. 1099. Hence, as the motion fails in that essential respect, the judge a quo ruled correctly in refusing a new trial.

Having reached the foregoing conclusion, it is unnecessary to. consider whether or not defendant would have been entitled to a new trial had he alleged in the motion for one that, notwithstanding the exercise of due diligence on his part, he failed to learn of the facts set out in the affidavits until after the trial. However, it is not amiss to say that, had he alleged such diligence and sworn to the allegation, still the facts disclosed by the affidavits would not have entitled him to a new trial.

For the reasons assigned, the judgment appealed from is affirmed.