Folmar v. State
| Decision Date | 22 November 1927 |
| Docket Number | 4 Div. 341 |
| Citation | 116 So. 110,22 Ala.App. 317 |
| Parties | FOLMAR v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Jan. 31, 1928
Appeal from Circuit Court, Pike County; W.L. Parks, Judge.
Rodgers Folmar was convicted of violating the prohibition law, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Folmar v. State, 116 So 112.
Brassell & Brassell, of Montgomery, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
There is but one question insisted upon by defendant as constituting reversible error, and that is the action of the trial court in refusing the defendant's motion for a new trial on the ground of newly discovered evidence. This evidence consisted of an affidavit made by the principal state's witness before a United States Commissioner at Montgomery, in which the witness swore that he purchased the whisky, for which defendant was being prosecuted, from Ray Folmar and not the defendant. Before a defendant is entitled to a new trial on the ground of newly discovered evidence, it must be made to appear: (1) The newly discovered evidence must be such as could not, with reasonable diligence, have been discovered in time to produce it at the trial; (2) it must be such as to render probable a different result on the retrial of the case; (3) the newly discovered evidence must be material and competent to the issue of fact originally tried; (4) that it must be not merely impeaching evidence (5) that it must not be merely cumulative. Fries v. Acme W.L. Co., 201 Ala. 613, 79 So. 45. In offering the affidavit of J.L. Gore before the United States Commissioner at Montgomery in support of the motion for new trial, the defendant did not bring himself within the above rule, in that it was not alleged or proved that the affidavit was unknown to defendant before the trial; due diligence in obtaining the affidavit was not shown; and it appears that the affidavit was merely for the purpose of impeaching the testimony of the witness McLung.
Other exceptions reserved on the trial are not insisted upon, but as required by law we have reviewed them. The question propounded to the witness McLung on cross-examination "Didn't you sign an affidavit that you purchased this whisky from Ray Folmar?" was too indefinite if asked as a predicate for impeaching McLung's testimony. Moreover, after the state's objection was sustained, no exception was reserved to the...
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Fuller v. State
...Ala. 13, 185 So. 374; Hodge v. State, 32 Ala.App. 283, 286, 26 So.2d 274, certiorari denied 248 Ala. 73, 26 So.2d 278; Folmar v. State, 22 Ala.App. 317, 116 So. 110, certiorari denied 217 Ala. 410, 116 So. 112; 39 Am.Jur., New Trial, § 158, p. In other jurisdictions where this question has ......
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Hoekstra v. Helgeland
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Smith v. State, 5 Div. 546
...a different result on a retrial of the case; must be material to the issue; must not be merely impeaching or cumulative. Folmar v. State, 22 Ala.App. 317, 116 So. 110. The defendant not only has failed to bring himself within the rule by showing diligence in procuring the evidence for the t......
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Huddleston v. State
...the trial; would render probable a different result; is material and competent; and not merely impeaching or cumulative. Folmar v. State, 22 Ala.App. 317, 116 So. 110, certiorari denied 217 Ala. 410, 116 So. 112; Williams v. State, 245 Ala. 32, 15 So.2d We are of the opinion that the newly ......