People v. McAllister , 16 Mich. App. 217 ( 1969 )

16 Mich. App. 217 (1969) 167 N.W.2d 600

PEOPLE
v.
McALLISTER

Docket No. 6,011.

Michigan Court of Appeals.

Decided February 26, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solictor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Kenneth A. Webb, for defendant on appeal.

BEFORE: FITZGERALD, P.J., and R.B. BURNS and BRONSON, JJ.

PER CURIAM:

Defendant was found guilty of damaging a safe, CL 1948, § 750.531 (Stat Ann 1954 Rev § 28.799), and breaking and entering, MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305).

Defendant moved for a new trial on the grounds of newly discovered evidence. The new evidence is an affidavit of Gregory Johnson stating that he and one Larry West committed the offense and the defendant did not participate.

The test for granting a defendant a new trial based on newly-discovered evidence is as follows:

"The rule concerning granting a new trial on the basis of newly-discovered evidence requires that the following 4 factors must be present: (a) That the evidence is newly discovered, (b) that the evidence is not merely cumulative, (c) that the evidence is such as to render a different result probable on retrial, (d) that the defendant could not with reasonable diligence have produced it at trial." People v. Keiswetter (1967), 7 Mich App 334, 343, 344.

Johnson's statement was newly discovered and is not cumulative. It goes to the heart of McAllister's defense, which is that he did not commit the crime.

The trial judge should have granted the motion for a new trial.

Reversed and remanded for a new trial.