Wiley v. People
| Decision Date | 05 June 1922 |
| Docket Number | 10344. |
| Citation | 207 P. 478,71 Colo. 449 |
| Parties | WILEY v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Pueblo County; James A. Park, Judge.
Fred Wiley was convicted of rape, and brings error.
Affirmed.
Joseph Dye, of Pueblo (Benjamin F. Koperlik, of Pueblo, of counsel) for plaintiff in error.
Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the People.
Plaintiff in error was convicted of the crime of rape, and brings error. His counsel contend that the court erred in holding that the prosecuting witness, who had been recalled by the defendant, was his witness, and not subject to cross-examination. This witness had been cross-examined at length by defendant's counsel before being recalled, and there is no showing made as to what was expected to be adduced on further cross-examination, and nothing to show that the defendant was prejudiced by the court's ruling. There are some other assignments of error on the admission and the rejection of evidence, but we find no reason to question the correctness of the court's ruling in those matters. The principal error relied upon is the refusal of the court to grant a new trial upon defendant's claim of newly discovered evidence. The motion is supported only by the affidavit of the defendant, and merely avers that two witnesses have knowledge of facts, reciting them, which, if testified to, would be favorable to the defense. The rule is that the evidence proposed to be adduced must be sufficiently important to make it probable that a different verdict will be returned on a new trial. C. S. & I. Ry. Co. v. Fogelsong 42 Colo. 341, 94 P. 356; 29 Cyc. 901.
If the witnesses mentioned in the defendant's affidavit testified to what it is averred they would testify, it does not appear that the evidence would be so far conclusive as to render it probable that a different verdict would be rendered. The application is further insufficient, in that it is not supported by affidavits of the newly discovered witnesses. It has been held that, in this jurisdiction, such an application should be supported by an affidavit of the newly discovered witness, stating the facts to which he will testify. Cronin v. Hoage (Colo.) 205 P. 271; Ward v Atkinson, 22 Colo.App. 134, 123 P. 120.
If such affidavit is not attached to the application, there should be a showing that it was impossible or impracticable to secure the same. 29...
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Digiallonardo v. People, s. 24116
...77 Colo. 445, 236 P. 1009. The granting or refusing of such a motion rests within the sound discretion of the court. Wiley v. People, 71 Colo. 449, 207 P. 478; Eachus v. People, Supra.' 79 Colo., at 557--558, 247 P., at In accord with this statement of the rule are the following cases: Bowl......
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Bowland v. People
...77 Colo. , 448, 236 P. 1009. The granting or refusing of such a motion rests within the sound discretion of the court. Wiley v. People, 71 Colo. 449, 207 P. 478; Eachus v. People, 'The testimony in the instant case was in sharp conflict. The credibility of the witnesses and the weight to be......
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Edwards v. People
...sound discretion of the court. Edwards v. People, 73 Colo. 377, 215 P. 855; Eachus v. People, 77 Colo. 445, 236 P. 1009; Wiley v. People, 71 Colo. 449, 207 P. 478. The trial court did not err in giving the instruction on the legal meaning of the expression 'reasonable doubt.' The instructio......
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Ives v. People
...77 Colo. 445, 448, 236 P. 1009. The granting or refusing of such a motion rests within the sound discretion of the court. Wiley v. People, 71 Colo. 449, 207 P. 478; Eachus v. supra.' There was no error in refusing to grant the motion for a new trial upon the ground of newly discovered evide......
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RULE 59
...Payment Gold Mining Co. v. Kirk, 56 Colo. 275, 139 P. 21 (1914); Lanham v. Copeland, 66 Colo. 27, 178 P. 562 (1919); Wiley v. People, 71 Colo. 449, 207 P. 478 (1922); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Heishman v. Hope, 79 Colo. 1, 242 P. 782 (1925); Warshauer Sheep & Wool ......
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COLORADO RULES OF CIVIL PROCEDURE
...Payment Gold Mining Co. v. Kirk, 56 Colo. 275, 139 P. 21 (1914); Lanham v. Copeland, 66 Colo. 27, 178 P. 562 (1919); Wiley v. People, 71 Colo. 449, 207 P. 478 (1922); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Heishman v. Hope, 79 Colo. 1, 242 P. 782 (1925); Warshauer Sheep & Wool ......
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Rule 59 MOTIONS FOR POST-TRIAL RELIEF.
...Payment Gold Mining Co. v. Kirk, 56 Colo. 275, 139 P. 21 (1914); Lanham v. Copeland, 66 Colo. 27, 178 P. 562 (1919); Wiley v. People, 71 Colo. 449, 207 P. 478 (1922); Eachus v. People, 77 Colo. 445, 236 P. 1009 (1925); Heishman v. Hope, 79 Colo. 1, 242 P. 782 (1925); Warshauer Sheep & Wool ......