Harper v. State , 7 Okla. Crim. 581 ( 1912 )

There are but two questions brought up for review by the petition in error and presented in the brief of counsel for appellant. The first is as to whether or not the motion for a new trial was filed in time; the second is as to the sufficiency of the motion upon the ground of newly discovered evidence. We will not discuss the first question because we think that on the merits this case should be affirmed on the ground that the motion for a new trial upon the ground of newly discovered evidence is altogether insufficient and fatally defective. Judgment in this case was rendered at the January term of the court. What purports to be a motion for a new trial was not filed until the March term of the court.

In the case of Drew v. State, 6 Okla. Crim. 348, 118 P. 677, Judge Doyle, speaking for this court, said:

"A motion for a new trial on the ground of newly discovered evidence, made before judgment, or after the term at which the defendant was convicted, is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion, the presumption being that the discretion was properly exercised."

In the case of Johnson v. State, 5 Okla. Crim. 4, 112 P. 761, this court said:

"The defendant filed a motion for a new trial upon the ground of newly discovered evidence, and claims that, if a new trial were granted him, he would be able to prove by Mollie Ingram and Lou Johnson that the prosecuting witness in this cause was over sixteen years of age at the time of the commission of this offense. Defendant alleges that since his arrest on the charge of this case he has been confined in jail and been unable to make any inquiries with reference to the testimony in the case; that he has used all reasonable diligence in procuring evidence in his behalf; and that he did not discover the testimony of the said Lou Johnson and Mollie Ingram until after the conviction. Defendant stated that he had exercised due diligence in procuring testimony in his behalf before the trial began. This is merely the statement of a conclusion. Such an affidavit should state the facts, so as to enable the court to see that due diligence had been exercised. The record shows that the father of the defendant resided at Woodville. With the least effort on the part of the defendant or his counsel, he should have been in possession of the alleged facts set up in his motion for new trial long before the trial of this case took place. The record further shows that the verdict was rendered against the defendant the same day on which the motion for new trial was filed. No explanation was made as to how or why it was that the defendant could discover this testimony as soon as he was convicted, but could not find it out before the trial. Defendant had had a preliminary trial at which the state's evidence was introduced, and in which he was represented by the same counsel who represented him in the final trial. The town of Woodville is about fifteen miles from the county seat where the trial took place. It is not alleged that counsel for the defendant even visited Woodville to make an investigation in behalf of their client; that the defendant or his counsel ever even requested the father of the defendant, who resided at Woodville, to make any investigation as to the facts of the case. They rested their defense entirely upon the hope that the jury would believe the testimony of the defendant rather than the testimony of the prosecuting witness. Under these circumstances it was too late, after the conviction, to begin to exercise that diligence which should have been exercised before the trial. Counsel cannot remain idle before a trial, and, after there has been a conviction, discover evidence which they could have discovered prior to the trial by the exercise of diligence, and thereby obtain a new trial. The trial of a criminal case is a very serious matter, and the law requires that defendants and those representing them must be diligent in preparing to defend their cases. It is their duty to prepare their cases for trial before a conviction has been had."

In the case of Slater v. United States, 1 Okla. Crim. 278,98 P. 111, this court said:

"In Runnels v. State, 28 Ark. 121, it is said: `Applications for new trial on the ground of newly discovered evidence are to be received with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and, if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of the testimony in time to have brought it forward on the trial; but it must appear that he could not have ascertained it by reasonable diligence. Pleasant v. State, 13 Ark. 362; Graham Waterman, New Trials, vol. 1, pp. 462, 485, and cases cited.' In Twine, Saddler Sawner v. Alice Kilgore, 3 Okla. 643,39 P. 389, Judge Burford said: `An application for a new trial on the ground of newly discovered evidence must show that the appellant used diligence to procure and present the evidence upon the trial, and the facts showing due diligence must be shown, so that the court may determine whether the diligence used was sufficient. Allen v. Bond, 112 Ind. 523, 14 N.E. 492; Hamm v.Romine, 98 Ind. 77. There is no showing in the case at bar that the defendant used any diligence whatever to procure testimony upon which their motion for a new trial is based, nor is there any allegation to the effect that they had no knowledge of such evidence prior to the trial of said cause.' In FlersheimMercantile Co. v. Gillespie, 14 Okla. 143, 77 P. 183, Judge Irwin said: `The next assignment of error is that the court erred in refusing to grant plaintiff a new trial on the ground of newly discovered evidence. It is a well-recognized rule of this court that a new trial on the ground of newly discovered evidence will not be sustained, unless it affirmatively appears from the affidavit in support of such motion that diligence has been used to discover such testimony, and that the same could not have been discovered at a time prior to the trial by the use of reasonable diligence. In the affidavit in support of the motion for a new trial in this case, the general statement is made that the plaintiff and its attorneys have used every possible effort to ascertain the names of these witnesses, and the facts whereof they would testify; but it does not appear by the affidavit what these efforts were, or in what manner or how they investigated or made inquiry to ascertain the facts.' The above cases present our views of the law upon this question clearly and fully. In this case the affidavit is silent upon the question of diligence. It is therefore fatally defective, and the trial court did not err in refusing to grant a new trial upon this ground. An affidavit for a new trial upon the ground of newly discovered evidence must set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, which fact should appear in the affidavit. If possible, it should be accompanied by the affidavit of the newly discovered witnesses."

Applying these rules to the case now before us, it is plainly apparent that the trial court did not abuse its discretion in overruling this motion. On the face of the record, the motion is fatally defective, as it appears affirmatively therefrom that the alleged evidence was not newly discovered. Upon the trial of this cause, appellant testified that he had looked up this man Delaney and asked him about it, and appellant then started to tell what Delaney said when he was interrupted by the court upon the objection that the testimony was hearsay. So appellant knew at the time of the trial what Delaney would swear and could have had him as a witness. Delaney lived at Tulsa and could easily have been obtained. His affidavit was obtained eight days after judgment was rendered against appellant. The information in this case was filed in the court on the 6th day of September, 1910, and appellant was immediately arrested thereafter. So appellant had five months' notice that the accusation against him was selling alcohol to Delaney. If he had exercised the least diligence, he could easily have had Delaney at the trial. There are other defects in the motion besides that of diligence, which we will not discuss. We have quoted fully from the law governing new trials upon the ground of newly discovered evidence, because many persons seem to think it is a light and trivial matter to be prosecuted in Oklahoma. This is a great mistake. The man who is careless about the preparation of his case for trial until after he is convicted will appeal to this court in vain for relief upon the ground of newly discovered evidence. If human evidence is worth anything, appellant is guilty of the offense of which he was convicted.

The judgment of the trial court is in all things affirmed, and mandate will issue at once.

ARMSTRONG and DOYLE, JJ., concur