State v. Cook

• Decision Date: 05 January 1907
• Parties: STATE, Respondent, v. IRA COOK and BORA A. BRUSHWOOD, Appellants
• Court: Idaho Supreme Court

88 P. 240

13 Idaho 45

STATE, Respondent, v. IRA COOK and BORA A. BRUSHWOOD, Appellants

Supreme Court of Idaho

January 5, 1907

NEW TRIAL-NEWLY DISCOVERED EVIDENCE-LOSS OF EVIDENCE-NEGLIGENCE AND WANT OF DILIGENCE-NEW TRIAL-DISCRETION OF COURT-ADMISSION OF EVIDENCE-ADMISSION OF CONVERSATION-CONFLICTING EVIDENCE.

1. Where a defendant concludes that it is necessary in a grand larceny case to produce, for the inspection of a jury certain colts resembling in color and kind the colts alleged to have been stolen, and takes them to the place of trial at one term of court, and the cause being continued until the next term, thereafter turns said colts out upon the public range and they stray away and are lost and after diligent search he fails to find them, and believing "his defense to be strong enough to proceed to trial without the production of said colts, and desiring a speedy trial," made no application for a continuance for time to produce said colts, he is not entitled to a new trial on the ground of newly discovered evidence in order to produce said colts for the inspection of the jury.

2. A new trial will not be granted on account of absence of witnesses where it is apparent that the witnesses were known at the time of the trial, but could not be found, and no continuance is applied for on that ground.

3. In such a case the defendant enters upon the trial at his peril if he fails to make application for a continuance on account of the absence of witnesses.

4. The present condition of a colt fourteen months old, offered for the inspection of a jury, would not be the same as the animal would be three years later, or when the colt was four years old, and "the autoptic proference is allowable only on the assumption that the condition" of the object so offered is the same or sufficiently similar as it was at the time the act complained of occurred.

5. The granting of a new trial is largely in the discretion of the court.

6. Where the evidence offered on motion for a new trial is not newly discovered, the refusal of the court to grant a new trial will not be disturbed.

7. Where the action is prosecuted for the larceny of an animal and evidence is admitted over the objection of counsel for the defendant to show that such animal was not in the owner's possession at the time of the trial, but had been taken or had escaped therefrom, it is not reversible error to admit such evidence.

8. It is not error for the court to admit the testimony of a witness for the state showing that a witness for the defendant had attempted to persuade him not to testify in the case, as such evidence tends to show the bias or interest of such witness.

9. Where there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed on appeal.

(Syllabus by the court.)

APPEAL from the District Court of Third Judicial District for Boise County. Hon. Geo. H. Stewart, Judge.

The defendants were convicted of grand larceny and sentenced to a term of four years in the penitentiary. Judgment affirmed.

Affirmed.

Hawley, Puckett & Hawley, for Appellants.

We believe the true rule to be that where the new evidence would probably bring about a different result, so long as diligence in its search and the materiality of its nature are established, then a new trial should be granted.

The real test of whether a new trial should be granted on newly discovered evidence is: "Is this testimony probably true, and will it likely change the result?" (Spelling on New Trial, par. 226; Oberlander v. Fixen & Co., 129 Cal. 690, 62 P. 254; State v. Bond, 12 Idaho 424, 86 P. 43.)

The subject of cumulative evidence has many definitions, and among them we find, separate and distinct, evidence of witnesses and real evidence. (1 Elliott on Evidence, p. 13; also paragraphs 23, 24.)

This distinction has been made, and manifestly in the case at bar the newly discovered evidence we presented is not the evidence of witnesses, but real evidence. Surely, this is not evidence of the same kind to the same point. Evidence of a different kind and character from that produced at the trial, though bearing on the same point, is corroborative, and if there be no other objection to it, warrants a new trial. (Spelling on New Trial, par. 228.)

The objection made to the question propounded to the witness Jesse B. De Masters should have been sustained. This question related to a conversation between witness and one Jeffries, a witness for the state, in which the witness advised Jeffries not to testify or make any trouble for Cook. Clearly, this evidence of a conversation in which neither of the defendants were present, nor in which either party was shown to have been authorized to speak as agent for either of the defendants, was neither material, competent nor relevant. It was only asked to prejudice the jury and was entirely incompetent as legal evidence to fasten this crime upon the defendants. Men are not to be convicted and punished for larceny because they drive horses resembling those that have been stolen. That, in brief, is the case against defendants.

"Conceding that there is circumstantial evidence against the defendant tending to establish his guilt, those circumstances can be and are as reasonably explained on other hypotheses than that of defendant's guilt, or as perfectly consistent with defendant's innocence, and for that reason a new trial should have been granted." (State v. Seymour, 10 Idaho 699, 79 P. 825; State v. Nesbit, 4 Idaho 548, 43 P. 66.)

J. J. Guheen, Attorney General, Edwin Snow and Philip R. Hindman, for Respondent.

The county should not be put to the expense of a new trial merely because the defendants were inexcusably careless with regard to their own property. The law demands of the parties all reasonable diligence and caution in preparing for trial, and furnishes no relief for the hardships resulting from inexcusable negligence or want of diligence. (Howard v. Winters, 3 Nev. 542.)

It is the evidence itself, and not merely its materiality, which must have been newly discovered. (People v. Sutton, 73 Cal. 243, 15 P. 86.) If discovered before or at the trial, and no continuance of the trial was applied for, an answer to the motion that no diligence is shown would be sufficient to defeat it, no matter what else is shown. (1 Spelling on New Trial and Appellate Practice, sec. 207; Scanlan v. San Francisco & San Joaquin Ry. Co., 128 Cal. 586, 61 P. 271.)

One must show that evidence introduced on motion for new trial as newly discovered was first learned of after the trial. (Curran v. Stange Storage Co., 98 Wis. 598, 74 N.W. 377; Wimpy v. Gaskill, 79 Ga. 620, 7 S.E. 156; State v. Lamothe, 37 La. Ann. 43; Fagin v. State, 3 Tex. App. 400; Garner v. State, 34 Tex. Cr. Rep. 356, 30 S.W. 782.)

Any question based upon the appearance of the colt now as furnishing any means of identification of the colt three years ago would be incompetent, irrelevant and immaterial. (2 Wigmore on Evidence, sec. 1154.) This is merely cumulative evidence on a point which was testified to on the first trial, namely, the identity of the colts. Cumulative evidence will not warrant a new trial. (State v. Davis, 6 Idaho 159, 53 P. 678; State v. Williams, 12 Idaho 483, 86 P. 53.)

The granting of application for new trials on the ground of newly discovered evidence is largely within the discretion of the trial court. (People v. Woon Tuck Wo, 120 Cal. 294, 52 P. 833; Pengilly v. Threshing Machine Co., 11 N. Dak. 249, 91 N.W. 63; Longley v. Daly, 1 S. Dak. 257, 46 N.W. 247; People v. Clark, 130 Cal. 642, 63 P. 138.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

The appellants were, by information filed May 26, 1905, accused of the crime of grand larceny. The property alleged to have been stolen was a dark brown mare about fourteen months of age, of the value of $ 100 and the property of Andrew Evans. On June 8, 1905, the defendants plead "not guilty." Thereafter trial was had and they were found guilty as charged in the information, and each of the defendants was sentenced to the state penitentiary for a term of four years. A motion for a new trial was made setting forth various errors alleged to have been committed by the trial court, and also alleging the insufficiency of the evidence, and by means of affidavits certain alleged newly discovered evidence was set forth which was claimed to be material to the defense. Said motion was argued by respective counsel, and after due deliberation and consideration by the court was denied, and this appeal is from the judgment and order overruling said motion. Numerous errors were assigned in regard to the admission and rejection of evidence; the refusal of the court to instruct the jury to return a verdict of not guilty on the ground of insufficiency of evidence; newly discovered evidence--the action of the court in denying the motion for a new trial, and the insufficiency of the evidence to support the verdict.

The following facts, among others, appear from the record: The complaining witness, Andrew Evans, missed two colts from his pasture on July 9, 1904. After a search of two or three days he found the colts on or near the premises of the defendant, Ira Cook, some thirty miles distant from said pasture. The animals were freshly branded; one of them was hobbled, and, according to the testimony of Evans, both were concealed in a grove of quaking asp. It also appears from the testimony of several witnesses that the two defendants were seen driving two colts of similar kind and description toward the Cook ranch on July 10th; one of said colts was a brown mare with a white star on her forehead, the other a bay mare colt, both of the age of about fourteen months. It also...