Curry v. Commonwealth

• Decision Date: 11 June 1903
• Citation: 74 S.W. 1077
• Parties: CURRY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

74 S.W. 1077

CURRY v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 11, 1903

Appeal from Circuit Court, Clay County.

"Not to be officially reported."

Henry Curry was convicted of robbery, and he appeals. Affirmed.

B. B Golden, for appellant.

M. R Todd, for the Commonwealth.

BARKER J.

The appellant, Henry Curry, was indicted in the Clay circuit court, with Johnson Roberts, upon the charge of the crime of robbery. Upon the trial, Roberts was acquitted, and appellant found guilty by the jury, and his sentence fixed at confinement in the state penitentiary for period of two years. Of this he now complains in this court.

The grounds for reversal are: First, error of the court in failing to award him a new trial because he was surprised at the testimony of the prosecuting witness, Jarvis Pinner second, that the court erred in refusing to grant his motion for a new trial on the ground of newly discovered evidence. In support of the first ground, he filed in the court below his affidavit as to the difference in the testimony of the prosecuting witness in the examining trial and that given in the final trial. At the time the testimony was given by the prosecuting witness, which appellant complained surprised him, he made no motion for a continuance on this ground or filed any affidavit as a basis for such motion. After the commonwealth's testimony was in he introduced his evidence, and the fact that he was surprised appears for the first time in his motion for a new trial. In the case of Jackson v. Commonwealth (Ky.) 14 S.W. 677, it was held that the surprise of the defendant at the testimony of the prosecuting witness was not ground for a new trial.

Appellant also filed his affidavit, showing the substance of the newly discovered evidence; and this affidavit demonstrates the fact that what purports to be newly discovered evidence is merely cumulative. This court, in Williams v. Commonwealth, 18 S.W. 364, held that the discovery of new evidence which was merely cumulative was not sufficient ground for a new trial.

An insuperable objection to both of the grounds relied upon to reverse this case is that they only constitute, at best grounds for a new trial, and we have held, over and over again, that the refusal of the trial court to grant a new trial was not an error into which this court could inquire. Farris v. Commonwealth, 14 Bush, 368; Kennedy v Commonwealth, 14 Bush, 340; and Terrell...