State v. Lopa

• Decision Date: 29 May 1917
• Docket Number: 15468
• Citation: 117 N.E. 319,96 Ohio St. 410
• Parties: State Of Ohio v. Lopa
• Court: Ohio Supreme Court

117 N.E. 319

96 Ohio St. 410

State Of Ohio v. Lopa

15468

Supreme Court of Ohio

May 29, 1917

Evidence - Impeaching or cumulative in character - Testimony as to sound - Question of prejudicial error -Court procedure - Death from assault- Criminal law.

Mr John L. Cable, prosecuting attorney, and Mr. O. O. Barr, for plaintiff in error. Mr. Joel G. Hersh and Mr. W. W. Sutton for defendant in error. BY THE COURT.

The defendant in error, Nick Lopa, was tried and convicted of murder in the second degree. The court of appeals reversed the conviction on two grounds: first, that a new trial should have been awarded by the trial court because of newly discovered evidence; and, second, for the refusal to rule from the jury certain evidence given by Estella Lawler, a witness for the state. The state prosecutes error to this court.

The testimony of the state tended to show that at the time of the assault there were two persons present in the room with the defendant, viz., James Patton, the deceased, and a woman by the name of O'Reagan; that after Lopa's assault upon Patton, Patton left the house and did not thereafter return. The defendant testified in his own defense, claiming that Patton after leaving the house returned and made an assault upon him.

After conviction, upon a motion for a new trial in support of the claim of newly discovered evidence, the defendant offered the affidavits of two witnesses tending to support the claim of the defendant and to contradict the testimony of the O'Reagan woman, and to the effect that after Patton had left Lopa's house he returned thereto as testified to by the defendant.

It is manifest that this newly discovered evidence proffered on the motion was in its nature both impeaching and cumulative. It was the former in that it tended to impeach the statements of the O'Reagan woman, and cumulative in that it supported the testimony of the defendant upon the issue whether Patton returned to the defendant's house as claimed.

The granting of a motion for a new trial upon the ground named is necessarily committed to the wise discretion of the court and a court of error cannot reverse unless there has been a gross abuse of that discretion. And whether that discretion has been abused must be disclosed from the entire record. The rule of procedure in this regard has been frequently announced by this court. The new testimony proffered must neither be impeaching nor cumulative in character. Were the rule otherwise the defendant could often easily avail himself of a new trial upon the...