State v. Petro

• Decision Date: 26 November 1947
• Docket Number: 31098.
• Citation: 76 N.E.2d 370,148 Ohio St. 505
• Parties: STATE v. PETRO.
• Court: Ohio Supreme Court

76 N.E.2d 370

148 Ohio St. 505

STATE v. PETRO.

No. 31098.

Supreme Court of Ohio

November 26, 1947

Syllabus by the Court.

To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. (State v. Lopa, 96 Ohio St. 410, 117 N.E. 319, approved and followed.)

Appeal from Court of Appeals, for Cuyahoga County.

Edward C. Stanton and M. A. Picciano, both of Cleveland, for appellant.

Frank T. Cullitan, Pros. Atty., and Victor DeMarco, both of Cleveland, for appellee.

TURNER Judge.

This is a separate appeal growing out of State v. Petro, Ohio Sup., 76 N.E.2d 355.

Appellant assigns as error the affirming of the judgment of the trial court in overruling defendant's motion for new trial on the ground of newly discovered evidence, material to the defendant, and which he could not with reasonable diligence have ascertained and produced at the trial.

The motion reads:

'Now comes Julius Anthony Petro, defendant in the foregoing matter, and moves this honorable court for an order vacating and setting aside the verdict of the jury in this cause rendered on the 18th day of June, 1946, and granting a new trial herein, for the following reasons, to wit:

'Newly discovered evidence material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.

'In support of this motion, and pursuant to Section 13449-1 General Code, defendant files herewith the affidavit of the witness by whom such evidence is expected to be given.

'The affidavit reads as follows:

'Thomas Whalen, being first duly sworn according to law deposes and says that on the 2nd day of March, 1946, he was a duly qualified, appointed and acting member of the Cleveland Police Department, assigned to the homicide squad.

'Affiant further deposes and says that in company with other members of the Cleveland Police Department, he investigated the homicide of one Robert Knaus, whose body was found on Belvoir boulevard on the afternoon of said day.

'Affiant further says that he, in his capacity as a police officer of the city of Cleveland, was present at the morgue of said Cuyahoga county, Ohio, at 8 p. m. on March 2nd, 1946, when the body of Robert Knaus was examined by Samuel R. Gerber, coroner of Cuyahoga county, Ohio; that at the conclusion of said examination the said Samuel R. Gerber, coroner of Cuyahoga county, Ohio, stated in the presence and hearing of this affiant that the body had been dead approximately 60 hours prior to said examination at 8 p. m., and that in conformance with the rules and regulations of the police department, affiant made a written report pertaining to said investigation, including therein a reference to what transpired at the county morgue at 8 p. m.; that said report consisted of an original and three carbon copies in each of which this affiant reported therein the following:

"Dr. Gerber, county coroner, examined the body of the victim and informed us that death had been approximately 60 hours previous to his examination at 8 p. m., March 2nd. He will give further details later.'

'Further affiant saith not.

'(Signed) Thomas Whalen.'

The law on this subject is set forth in the per curiam opinion in the case of State v. Lopa, 96 Ohio St. 410, at page 411, 117 N.E. 319, 320, where it is said: 'The granting of a motion for a new trial upon the ground named [newly discovered evidence] is necessarily committed to the wise discretion of the court, and a court...