Meurer v. State

• Decision Date: 09 December 1891
• Docket Number: 16,096
• Citation: 29 N.E. 392,129 Ind. 587
• Parties: Meurer v. The State
• Court: Indiana Supreme Court

29 N.E. 392

129 Ind. 587

Meurer v. The State

No. 16,096

Supreme Court of Indiana

December 9, 1891

From the Knox Circuit Court.

Judgment affirmed.

W. A Cullop, C. B. Kessinger and J. S. Pritchett, for appellant.

A. G Smith, Attorney General, for the State.

OPINION

McBride, J.

On the morning of September 18th, 1890, the appellant, with two brothers, engaged in a fight with four brothers named Blevins. During the contest the appellant shot and killed Rufus Blevins. For this he was tried and convicted of voluntary manslaughter. He moved for a new trial, alleging several reasons, but the circuit court overruled his motion. The only errors argued arise on this ruling, and relate to two of the reasons assigned for a new trial. These reasons are: 1st. Surprise, and 2d. That the evidence does not support the verdict. The appellant insists that the killing was in self-defence.

On the trial, one Omar Davis testified as a witness for the State to certain facts which if true were material as bearing on the claim that the killing was in self-defence. He was directly contradicted on every material point by three witnesses in addition to the appellant.

The surprise of which the appellant complains was in the testimony of Davis, who, the appellant swears, several times before the trial assured him that he knew nothing whatever of the matter, and who also testified as a witness at the coroner's inquest that he knew nothing of it. The appellant also produced the affidavits of three witnesses who would directly contradict Davis. One of these he did not know of until Davis testified, and could not with reasonable diligence have learned of or produced at the trial. The others, however, were present and testified at the trial on other matters, and no excuse is shown for not then examining them as to the matters of which Davis testifies.

As above stated, Davis was contradicted on every point by three witnesses and by the appellant on the trial. The testimony of the newly-discovered witness, therefore, in so far as it might tend to disprove the facts testified to by him, would have been merely cumulative, and a new trial will never be granted because of newly-discovered evidence which is merely cumulative. Simpson v. Wilson, 6 Ind. 474; State, ex rel., v. Clark, 16 Ind. 97; Martin v. Garver, 40 Ind. 351; Winsett v. State, 57 Ind. 26; Dodds v. Vannoy, 61 Ind. 89; Harper v. State, ex rel., 101 Ind. 109; Marshall v. Mathers, 103 Ind. 458, 3 N.E. 120; De Hart v. Aper, 107 Ind. 460, 8 N.E. 275; Sutherlin v. State, 108 Ind. 389, 9 N.E. 298.

If it was the purpose by this evidence to impeach Davis, the same result would follow, as a new trial will never be granted on account of newly-discovered evidence when the sole purpose of such evidence is impeachment. McIntire v. Young, 6 Blackf. 496; State, ex rel., v. Clark, supra; Martin v. Garver, supra; Evans v. State, 67 Ind. 68; Sullivan v. O'Conner, 77 Ind. 149; Sutherlin v. State, supra.

If the newly-discovered evidence would be merely cumulative, or could...