Bowling v. State, 27706.
| Decision Date | 19 October 1942 |
| Docket Number | No. 27706.,27706. |
| Citation | 220 Ind. 497,44 N.E.2d 171 |
| Parties | BOWLING v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Charles Bowling was convicted of rape, and he appeals.
Affirmed.Appeal from Circuit Court, Noble County; Fred L. Bodenhafer, judge.
Guy W. Dausman, of Goshen, and Claud V. Barker, of Albion, for appellant.
George N. Beamer, Atty. Gen., and Norman E. Duke, Deputy Atty. Gen., for appellee.
The appellant was convicted of the crime of rape in the first degree. The only assigned error which the appellant attempts to present is the action of the trial court in overruling the amended motion for a new trial. The sole ground for a new trial, on which the appellant relies, is newly discovered evidence, which he attempted to present by an affidavit made by the prosecuting witness to the effect that the testimony she gave at the trial was false and that the appellant was not guilty as adjudged. Said affidavit was attached to and filed with the amended motion for a new trial.
Neither this affidavit nor certain counter-affidavits, which were filed by the state, were brought into the record by a bill of exceptions.
The granting of a new trial on the ground of newly discovered evidence lies within the sound discretion of the trial court. To justify the court in granting a new trial on this ground the newly discovered evidence must be such as would probably change the result on a new trial and it must appear that the defendant could not, with reasonable diligence, have discovered and produced such evidence at the trial. It must also appear that such evidence is not merely cumulative or impeaching. § 9-1903, Burns' 1933, § 2310, Baldwin's 1934; Sullivan v. State, 1937, 212 Ind. 79, 6 N.E.2d 951.
To determine these facts the court must consider the new evidence and the credibility of the witness who proposes to give it, in relation to the evidence heard at the trial.
It is only for an abuse of discretion by the trial court in refusing to grant a new trial on the ground of newly discovered evidence that this court will interfere and set aside the judgment. To determine whether there has been such an abuse of discretion by the trial court, this court must be furnished with a record containing all of the evidence which the trial court considered. This can only be done by a bill of exceptions which shows that it contains all of the evidence heard by the trial court. Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018.
In the instant case the...
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Butler v. State
...v. State, 1940, 217 Ind. 65, 73, 26 N.E.2d 391, 394. See also Shriner v. State, 1943, 221 Ind. 250, 47 N.E.2d 139;Bowling v. State, 1942, 220 Ind. 497, 44 N.E.2d 171. A further cause, that the court erred in overruling defendants' objection to the testimony of the witness Ed Rose, on behalf......
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Culp v. State
...principles applicable to the granting of a new trial because of newly discovered evidence have recently been stated in Bowling v. State, 1942, 220 Ind. 497, 44 N.E.2d 171, and need not be repeated. In that case there was no bill exceptions. In the case at bar there is a bill of exceptions b......