Morris v. State, 8 Div. 329.

Decision Date22 March 1932
Docket Number8 Div. 329.
Citation142 So. 592,25 Ala.App. 156
CourtAlabama Court of Appeals

Rehearing Granted June 7, 1932.

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

George L. Morris was convicted of arson in the second degree, and he appeals.

Reversed and remanded.

In arson prosecution, photograph identified as place where building burned relevant as showing building was burned held admissible, though merely cumulative evidence.

The opinion of Horton, Circuit Judge, on the motion for a new trial, is as follows:

"This cause is submitted upon the motion of the defendant to set aside the judgment of conviction against and to grant him a new trial. There are fourteen grounds of the motion. The only grounds which the court deems necessary to consider are the fourth and fifth grounds and the fourteenth ground. The fourth and fifth grounds are practically the same; that is that the verdict of the jury was against the great weight of the evidence. The fourteenth ground is based upon newly discovered evidence. The court will first consider the fourteenth ground, and the consideration of this ground will probably be sufficient to cover the fourth and fifth grounds. Newly discovered evidence is ground for a new trial, but the general rule is that applications for new trials for this cause are not favored. The general rule upon the subject is stated in 20 R. C. L. page 289, § 72. This text, after stating that applications on this ground are not favored by the court, and after defining the burden that is upon the applicant, states that: 'The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse. This is also true in criminal cases.' The text thereupon states what must appear in order to warrant the granting of a new trial:
"'In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.'
"The court will first consider the fourth and fifth requisites. The fourth requisite is that it is material to the issue. Paragraph 75 defines what is meant by material to the issue: 'The newly discovered evidence must go to the merits and not merely to discredit or impeach a former witness.' Further in section 76 the text says: That a new trial should not be granted where the newly discovered evidence only impeaches the testimony of an adversary, or a witness of the adverse party, unless it is of such a nature that a different result must necessarily follow. Besides that, the general rule is that merely cumulative evidence is not sufficient to cause a new trial to be granted.
"An examination of the newly discovered evidence presented by the motion for a new trial discloses that this evidence is all of an impeaching and cumulative nature. In fact it may be said it is all both cumulative and impeaching. The purpose of this new evidence is to impeach the testimony of the witness for the State, Henry Ward Holland; that is, to show that certain persons induced him to testify by offering him a reward, and that before the date of the burning that he tried to procure, affiant Steele to set fire to the building, stating that Dr. Morris was after him for a settlement. This evidence, as the court has stated, tends to impeach the witness Henry Ward Holland, to show that he had a motive to swear falsely, and further that he was trying to get some one to burn the building, and that the defendant Morris was after him for a settlement and threatening him with arrest. As to tending to show that Henry Ward Holland himself burned the building, he himself admits that he burned the building, and all the evidence for the State, and the entire insistence of the State, is that Henry Ward Holland was the incendiary. Besides that, Morris himself states that he was after him for a settlement, and had been down during the week before the fire insisting upon a settlement, and this evidence was given in for the purpose, and apparently the sole purpose, to show that Henry Ward Holland burned the building of his own motion without the inducing of the defendant Morris. This evidence is necessarily cumulative and impeaching. As to the other evidence impeaching him, it is hard to see how the witness Henry Ward Holland could be placed in a worse light than the evidence already had placed him in. The jury had these facts all before them. He is shown to be a self-confessed perjurer and self-confessed incendiary; he is shown to have made a statement immediately after the fire, and he is shown to have made a statement after he was carried to Moulton, stating in full his burning of the store, and of the part that the defendant Morris had in this burning. It is further shown that he afterwards, as the court remembers, at the instance of the defendant Morris, or at least, he is shown to have made a statement denying entirely his part in the fire and exonerating Morris entirely from any part in the causing of the fire. This sworn statement was introduced in evidence. Next he is shown to have sworn upon his own trial that he did not do the burning and entirely exonerating himself from the burning, and after all this the defendant Morris has introduced witnesses stating that Henry Ward Holland was unworthy of belief. So it seems that any additional evidence now trying to impeach him could add but little weight to that already introduced. All this did not make him an incompetent witness, but the jury could scarcely have placed any weight to any of his evidence, unless it was clearly corroborated. The court is, therefore, of the opinion that the newly discovered evidence is lacking in the fourth and fifth grounds stated in the text quoted from. The court is of the opinion that it comes within the second and third grounds of this text. As to the first ground the court is of the opinion that the evidence is not sufficient that the result of the trial would probably have been changed. In 29 Cyc. page 899 the text states: 'The newly discovered evidence must be material or important to the moving party. Evidence on a matter collateral to the issue is seldom good for a new trial. It is not sufficient that the new evidence, had it been offered on the trial might have changed the verdict. According to the weight of authority it must be sufficiently important to make it probable that a different verdict will be returned on another trial. According to some authorities, the new evidence must be of a decisive or conclusive character or such as to render a different result reasonably certain. A new trial will be granted more readily where the verdict appears to be against the weight of the evidence, or where it is quite doubtful under the evidence.' In line with what has already been stated, the Supreme Court of Alabama in Southern Railway Company v. Wildman, 119 Ala. 565, 24 So. 764, held that newly discovered evidence of contradictory statements of the adverse party, and that different testimony had been given in another suit respecting the same matters would not warrant a new trial. While the court does not feel it necessary to consider the question whether or not the verdict of the jury was against the great weight of the evidence, and as to whether or not the newly discovered evidence would probably change the result if a new trial were granted, nevertheless the court is of the opinion that the evidence was certainly sufficient upon which a jury could base its verdict.
"There is sufficient evidence to show that the defendant had a number of musical instruments; that these musical instruments were at Decatur, some in a store and some in his garage; that they were not insured at their location in Decatur. It may be true that the buildings in which these instruments were housed were such as to make it unlikely that they would be destroyed by fire; nevertheless they were uninsured. That the defendant procured a store in Town Creek, Alabama, in which to place these instruments for the ostensible purpose of sale; that he had never been to Town Creek until after the instruments were carried down there, and had only passed near there once on a trip to Leighton, Alabama; that he rented the store for a single month; that he placed in charge of this property one Holland, whom he had known for some time, and who bore a general bad character; that in spite of his character he placed him in charge of these goods, either for sale or for the purpose of being burned; that he was solicitous about getting insurance upon the goods. The evidence further shows that Holland called up the number of his 'phone at Decatur, Alabama, on the 17th and 19th of December, and repeated over the telephone a cryptic message. This message is testified to by the telephone operator at Town Creek, Alabama. While there has been evidence offered by the defendant tending to show he did not receive the message, and while he denies he received the message, nevertheless the message which his witnesses testified was delivered was a different one from the cryptic message. The father of Ward Holland testifies that the defendant on the day of the fire told him he had talked to Ward Holland and he would be home the next day. There is sufficient evidence without the evidence of the witness Ward Holland to show that the fire was of an incendiary origin. Next we find that James Cox goes into the defendant's store the night of the fire, and told the

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