Epling v. Commonwealth

• Decision Date: 11 March 1930
• Citation: 25 S.W.2d 1022,233 Ky. 407
• Parties: EPLING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W.2d 1022

233 Ky. 407

EPLING v. COMMONWEALTH.

Court of Appeals of Kentucky

March 11, 1930

Appeal from Circuit Court, Pike County.

John Ell Epling was convicted of the crime of carnally knowing a female under the age of eighteen, and he appeals.

Affirmed.

O. M Goff and Roscoe Vanover, Jr., both of Pikeville, for appellant.

J. W Cammack, Atty. Gen., and Douglas C. Vest, of Frankfort, for the Commonwealth.

WILLIS J.

John Ell Epling was convicted of the crime of carnally knowing a female under the age of eighteen years, and condemned to serve two years in the penitentiary. He has prosecuted an appeal complaining mainly of the failure of the trial court to grant him a new trial upon the ground of newly discovered evidence. Some other incidental contentions are advanced which will be disposed of as the opinion proceeds.

The prosecuting witness testified to several instances of intercourse between her and the defendant, but the commonwealth elected to rely upon a specific occurrence at the home of Mrs. Emily Stewart, on August 6, 1928. After the trial was over, appellant filed the affidavit of Mrs. Emily Stewart, who is his sister, in which she stated that the testimony of the prosecuting witness respecting what occurred at her house on August 6, 1928, was not correct, and that the transaction did not occur then or at all. Mrs. Stewart was not present at the trial, but the defendant learned then that the commonwealth would rely upon the alleged act occurring at her house when she was present. The appellant then manifested no surprise, made no motion for a continuance, and exerted no effort to obtain the presence of the witness. When a litigant is surprised at facts developed at the trial, he must take advantage of it at the time, and may not experiment with the jury, and, if the verdict happens to be against him, obtain another trial. Liverpool L. & G. Ins. Co. v. Wright, 158 Ky. 290, 164 S.W. 952; Caldwell v. Spears &amp Sons, 186 Ky. 64, 216 S.W. 83; Higgins v Forkner, 211 Ky. 588, 277 S.W. 983; Wages v Com., 192 Ky. 487, 233 S.W. 1044; Lewis v. Com., 190 Ky. 160, 227 S.W. 149. Furthermore, it is well settled that the application for a new trial must be accompanied by the affidavit of the applicant to the effect that the testimony was unknown to him during the trial, and could not, by the exercise of reasonable diligence, have been discovered sooner. Chilton v. Commonwealth, 170 Ky. 491, 186 S.W. 191, Ann. Cas. 1918B, 851; Ellis v. Commonwealth, 146 Ky. 715, 143 S.W. 425; Brennen v. Commonwealth, 169 Ky. 815, 185 S.W. 489. The proposed new testimony was merely contradictory of the prosecuting witness and cumulative of the denials interposed by the defendant. In such cases a new trial will not be granted. Mullins v. Commonwealth, 185 Ky. 326, 215 S.W. 56; Breeding v. Commonwealth, 191 Ky. 128, 229 S.W. 372. The defendant filed an elaborate motion and supplemental motion and grounds for a new trial, and in his brief has...