State v. Mariana

Tolman, J.

Appellant was tried and convicted upon a charge of having intoxicating liquor in his possession. Appealing, he urges chiefly that the evidence was insufficient. A reading of the record discloses that there was ample evidence to justify the verdict.

It is also contended that the trial court erred in permitting the prosecuting attorney, on .cross-examination, to question appellant regarding .a prior conviction. The examination went no further than to bring out the bare fact of a prior conviction on a felony charge under the prohibition statute. This was clearly proper and within the statute. Bern. Com. Stat., § 2290 [P. C. §8725].

Finally, it is asserted that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. The showing was made by the affidavits of several persons, who set forth that they were present at the time appellant was arrested on this charge, but not informed as to the date of his trial; that appellant did not know of their whereabouts at the time of the trial, or could not reach them, and that, had they been present at the trial, they would have given testimony which they say would have been material to appellant’s defense. Clearly this showing was insufficient, for a number of obvious reasons: one all-sufficient one being that, the statement in each affidavit to the effect that the affiant, if present, would have given testimony material to appellant’s defense, presents no fact for the consideration of the court, and courts máy not act on the mere conclusion or assertion of a would-be witness that his testimony is material.

The judgment is affirmed.

Main, C. J., Fullerton, Parker, and Pemberton, JJ., concur. .