State v. Glover

• Decision Date: 15 January 1917
• Docket Number: 22305
• Court: Louisiana Supreme Court
• Parties: STATE v. GLOVER

73 So. 843

140 La. 726

STATE v. GLOVER

No. 22305

Supreme Court of Louisiana

January 15, 1917

SYLLABUS

(Syllabus by the Court.)

When it is shown, on an application for a new trial of a criminal case on the ground of newly discovered evidence, that there was no lack of diligence on the part of the defendant to procure the evidence before the trial, that the evidence could not have been produced on the trial, that it is material and important to the defense made in the case, as to which there was conflicting evidence, and that the newly discovered evidence is not apparently incredible or suspicious, the trial judge is not justified in refusing to grant the new trial on the ground merely that the evidence would be only cumulative of other evidence heard by the jury and would not, in the opinion of the judge, affect the verdict.

J. B. Lamkin and W. F. Pipes, both of Monroe (Dawkins & Dawkins, of Monroe, of counsel), for appellant.

A. V. Coco, Atty. Gen., and Fred M. Odom, Dist. Atty., of Bastrop (Vernon A. Coco, of Marksville, of counsel), for the State.

OPINION

O'NIELL, J.

The defendant, appellant, was indicted for the crime of manslaughter, was tried and convicted, and sentenced to imprisonment in the state penitentiary for seven years.

He relies upon a bill of exception reserved to the overruling of his motion for a new trial, based upon the allegation of newly discovered evidence.

The alleged newly discovered evidence was to the effect that, about two minutes before the tragedy in which the defendant killed Charles Roan, the latter told the newly discovered witness that he (Roan) was going to kill Joe Glover, or the latter would kill him (Roan); and that, immediately after that threat, Roan walked over to where Joe Glover was standing and began shooting at him, and the latter killed Roan to protect his own life.

The trial judge overruled the motion for a new trial, on the ground that the alleged newly discovered evidence would be only cumulative of testimony that had been heard on the trial, and, in his opinion, would not have affected the verdict if the jury had had the benefit of it. It is not suggested by the trial judge, nor contended on behalf of the state, that there was any lack of diligence to procure the alleged newly discovered evidence, that it could have been discovered before the trial, or that it was not material or important, nor is any unfavorable suspicion cast upon it. The statement per curiam is:

'There were numerous witnesses who testified to practically the same thing on the trial and numerous other witnesses who testified that the accused was the aggressor and fired the first shot. I concluded from the evidence that the case was at best one of mutual combat in which neither could plead self-defense.'

The state contends that the defendant was not entitled to a new trial for the reasons: First, because the newly discovered evidence was only cumulative of other evidence that was heard by the jury; and, second, because the trial judge concluded that the newly discovered evidence would not have produced a different verdict than that rendered if it had been heard by the jury.

It has been held in a number of decisions by this court that a new trial should not be granted on the ground of newly discovered evidence, if the newly discovered evidence would be only cumulative of the testimony of witnesses heard by the jury. But in all of the decisions to which we are referred, except perhaps one, the ruling was justified by the fact that there was a lack of diligence or that the circumstances showed that the defendant or his attorney must or should have known of the alleged newly discovered evidence before the trial, and the trial judge had good reason to regard it with suspicion.

In the earliest decision cited by the state's attorneys, that of State v. Williams, 38 La.Ann. 361, it was said that it would be an unwise restriction on the discretion of the trial judge to hold that he could not take into account his belief that false swearing was resorted to to set aside the conviction and obtain a new trial. In that case, however, the ruling was founded and was sustained on the ground that the sole object of the alleged newly discovered evidence was to impeach a witness who had testified for the state, on a question as to which the defense had sought to obtain an admission from him during the trial. Hence the decision rested principally upon the lack of materiality or importance of the alleged newly discovered evidence.

In State v. Harris, 39 La.Ann. 1105, 3 So. 344, where it was again said that an application for a new trial, predicated upon newly discovered evidence, should be refused when it appeared that the alleged newly discovered evidence was only cumulative, the decision rested upon the fact that the alleged newly discovered evidence, if it existed, must have been within the knowledge of the accused before his trial. That decision was affirmed in State v. Jones, 46 La.Ann. 545, ^[1] 15 So. 402, in which, however, the court found that 'there was an absolute want of ordinary diligence on the part of the accused'; and the latter decision was cited as the precedent for the ruling in State v. Green, 49 La.Ann. 65, 21 So. 124.

In State v. Bailey, 50 La.Ann. 533, 23 So. 603, it was said that newly discovered evidence merely cumulative was not a sufficient ground for granting a new trial, citing State v. Hanks, 39 La.Ann. 234, 1 So. 458, and State v. Lamothe, 37 La.Ann. 43; and that newly discovered evidence, having no other effect than to impeach a state witness, was not a sufficient ground for granting a new trial, citing State v. Williams, 38 La.Ann. 361. The decision was cited as the precedent for the ruling in State v. Lejeune, 52 La.Ann. 463, 26 So. 992, where, however, the circumstances disclosed that the alleged newly discovered evidence was in fact not newly discovered.

In State v. Maxey, 107 La. 799, 32 South 206, the doctrines relied upon by the state were announced, viz.: (1) That the fact that the alleged newly discovered evidence was only cumulative was a sufficient reason for refusing to grant a new trial; and (2) that the judge's belief that the alleged newly discovered evidence was not true was a sufficient ground for refusing the new trial. But the decision rested upon the finding that the defendant had not used due diligence to procure the alleged newly discovered evidence...