Cox v. State , 19 Ala. App. 557 ( 1924 )

The defendant, after conviction, filed his motion for a new trial, on the ground of newly discovered evidence. This appeal is from the judgment overruling this motion. The evidence taken on the trial is not in the record and was not introduced in support of the motion. Every presumption will be indulged in support of the judgment of the lower court, and, indulging this presumption, we may assume that the evidence offered by affidavit in support of the motion was merely cumulative to that offered on the trial.

Again, while defendant's counsel submit an affidavit acquitting counsel of a lack of diligence in the preparation of the case, it is not the duty of attorneys to "hunt up" evidence. The client must furnish the evidence, and he knew the state would attempt to prove the age of the girl to be under 16 years. Nothing is shown by the affidavits sufficiently acquitting defendant of a lack of diligence in this respect. Fries v. Acme W. L. Co., 201 Ala. 613, 79 So. 45.

There is no error in the record, and the judgment is affirmed.

Affirmed.