State v. McLaughlin
| Citation | 27 Mo. 111 |
| Parties | THE STATE, Defendant in Error, v. MCLAUGHLIN, Plaintiff in Error. |
| Decision Date | 31 March 1858 |
| Court | United States State Supreme Court of Missouri |
1. An application for a new trial on the ground of newly discovered evidence should, as a general rule, be accompanied by the affidavit of the party seeking the new trial; the affidavit of a third person should never be received without an explanation of the reason why the party himself omitted to make it.
Error to St. Louis Circuit Court.
J. W. Sharp, for plaintiff in error, cited 14 Johns. 294; 18 Mo. 321; 22 Conn. 156; 17 Wend. 460; 1 Hill, 94; 5 Gilm. 305; 1 Hawk P. C. 33; 7 M. & W. 623; 1 Hale, 506.
Mauro (circuit attorney), for the State.
It is sufficient to say, without analyzing the instructions that were given, that they presented the law of the case fairly to the jury, and on the hypothesis that the defendant found the pocket-book, the law was stated in conformity to the opinion of this court in the case of the State v. Conway, 18 Mo. 321. The instructions asked by the defendant were properly refused, because the principle contained in the first was covered by one already given, and the second was wrong, because it assumed that larceny can only exist where the property stolen is taken from the possession of the owner, and excluded the idea that larceny can be charged in any case where the defendant acquires possession of property by finding it.
The motion for a new trial on the ground of newly discovered evidence was supported by the affidavit of the defendant's attorney and of the discovered witness, but the defendant personally did not make any statement or affidavit on the subject, and no reason is given for the admission. There are, no doubt, cases in which the affidavit that accompanies a motion for a new trial on account of newly discovered evidence may properly be made by the attorney, or some other person representing the party; but the general rule is that the party himself must make the affidavit, and the circumstances that would authorize an exception to the rule ought to appear. Applications for new trials on the ground of evidence discovered after the trial are entertained with reluctance, because of the temptation to parties smarting under defeat to make them, and on account of the facility with which plausible grounds are manufactured. A party may be very willing to take the chances of a new trial, but unwilling or afraid to swear to a statement necessary...
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Chapman v. King
...to parties smarting under defeat to make them, and . . . of the facility with which plausible grounds are manufactured' [State v. McLaughlin, 27 Mo. 111, 112--see Lindhorst, supra, 105 S.W.2d at 977] but also of the fact that, 'if the discovery of new, material evidence alone would be groun......
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...v. Parker, 324 Mo. 734, 741(7), 24 S.W. (2d) 1023, 1026(12)); and, unsupported by any showing in the record, is insufficient. [State v. McLaughlin, 27 Mo. 111, 112, stating the showing required and reasons therefor, and approved and followed in State v. Smith (Mo.), 247 S.W. 154, 157(2), ci......
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Grubbs v. Public Service Co.
...a manifest abuse of that discretion is made to appear. [Devine v. Wells, 300 Mo. 177, 186, 254 S.W. 65.] In the early case of State v. McLaughlin, 27 Mo. 111, 112, we held the following to be among the requisites necessary to obtain a new trial on newly discovered evidence: "The party must ......
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Grace v. Perry
...and failed to offer, by attaching same to a motion for a new trial. State v. Soper, 148 Mo. 240; State v. Miller, 144 Mo. 30; State v. McLaughlin, 27 Mo. 111, citing the rule stated in Berry v. State, 10 Ga. 527. (4) Plaintiff has no grievance because the trial court admitted his evidence s......