State v. Lumpkin

• Citation: 31 Idaho 175,169 P. 939
• Parties: STATE, Respondent, v. WILLIAM LUMPKIN, Appellant
• Decision Date: 31 December 1917
• Court: United States State Supreme Court of Idaho

169 P. 939

31 Idaho 175

STATE, Respondent, v. WILLIAM LUMPKIN, Appellant

Supreme Court of Idaho

December 31, 1917

MOTION FOR NEW TRIAL - NEWLY DISCOVERED EVIDENCE-SUFFICIENCY OF.

1. When the circumstances upon which a verdict is based can be as reasonably explained upon some other hypothesis than that of defendant's guilt or are as consistent with his innocence as his guilt, a new trial should be granted.

2. Evidence of new facts not brought out upon the trial cannot be regarded as merely cumulative.

3. Evidence which bears directly upon the main fact at issue cannot be regarded as merely impeaching, even though its effect may also be to impeach a witness for the state.

4. A new trial should not be granted upon the ground of newly discovered evidence where such evidence is merely cumulative but if the evidence is not cumulative merely and is such as to render a different verdict reasonably probable upon a retrial, a new trial should be granted.

5. A new trial should be granted because of newly discovered evidence, even though such evidence is cumulative, if it is of so controlling a character as to probably change the verdict.

6. Held, that the affidavits of newly discovered evidence herein are sufficient to entitle appellant to a new trial.

7. Held, that if the newly discovered evidence herein relied upon were introduced upon a retrial, it would be disregarding the weight and effect of evidence altogether to say that it is not reasonably probable that a different verdict would result.

[As to what is cumulative evidence within the rule excluding it when offered as newly discovered evidence in support of motion for new trial, see note in Ann.Cas. 1913D, 157]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

From a judgment of conviction for selling intoxicating liquor and from an order denying a new trial, defendant appeals. Reversed, with instructions to grant a new trial.

Reversed and remanded, with instructions.

McFarland & McFarland, for Appellant, cite no authorities on points decided.

T. A Walters, Atty. Genl., J. P. Pope, Assistant, and Bert A Reed, for Respondent.

The granting or denying of a new trial in a criminal case rests in the sound discretion of the trial court, and its action thereon will not be disturbed on appeal unless there appears a clear abuse of discretion. (State v. Barber, 15 Idaho 96, 96 P. 116.)

A new trial will not be granted for newly discovered evidence which, when produced, will merely impeach or discredit a witness who testified at the trial. (12 Cyc. 741, and cases cited.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

The appellant was informed against, tried and convicted of the crime of selling intoxicating liquor, and was sentenced to pay a fine of $ 100, to be confined in the county jail for sixty days, and his license as a pharmacist was revoked. This is an appeal from the judgment and from an order overruling a motion for a new trial.

The material part of the information charges "that the said William Lumpkin, on or about the 26th day of January, A. D. 1917, at the county of Kootenai, state of Idaho, unlawfully and wilfully did sell and deliver to one Sam Thomas, one pint bottle filled with a fluid containing seventy per cent of alcohol, an intoxicating liquor, at and for the price of seventy-five cents. . . . "

The evidence on the part of the state consisted of the testimony of Thomas to the effect that he bought the liquor, a mixture of ginger and alcohol, from appellant as alleged; the testimony of Jackson, a police officer, that he was standing on the opposite side of the street at the time, saw Thomas go into the drug-store and hand appellant a bottle, that appellant took the bottle into the rear of the store and returned shortly and gave it back to Thomas, that Thomas took the bottle and left the store and was shortly after arrested by Jackson and another officer, and that the pint bottle containing the liquor and an empty half-pint bottle were found in his possession at that time; a federal license authorizing appellant to sell intoxicating liquors was also introduced.

The evidence on the part of appellant consisted of his own testimony denying the sale or delivery of the liquor to Thomas, coupled with an explanation that he had been required by the federal internal revenue collector to take out the license in order to enable him to carry pure alcohol and certain medicines and drugs containing alcohol handled in his business as a pharmacist. Numerous witnesses testified on his behalf to the effect that he had borne a good reputation as a law-abiding citizen. To rebut this latter testimony two witnesses were produced by the state, but they each testified that plaintiff had always borne a good reputation in this regard.

The principal assignment of error is that "the court erred in overruling and denying appellant's motion and application for a new trial." The chief ground relied upon by appellant on his motion for a new trial was that of newly discovered evidence, in support of which many...