Stilwell v. State

MATSON, J. (after stating the facts as above). The «ole ground relied upon in the brief of counsel for defendant as. ground for reversal of this judgment is that the trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence. In the motion for a new trial, the defendant presented the affidavit of one L. M. Kirk, who was the mother of the defendants Elmer Kirk and Wesley Kirk. In the affidavit Mrs. Kirk says that the package of dies, stamps, and stencils were ordered by Wesley Kirk without the knowledge of Elmer Kirk, and were ordered sent in the name of Elmer Kirk, for the reason that Wesley Kirk was at that time hiding from the officers, and that, when the package came, she (witness) put them in her trunk, intending to send1 them back, but never did it; also regarding the bill of sale, Mrs. Kirk says that the same was written by Wesley Kirk in her presence sonrn time before the automobile in question was stolen, and that defendant Sti-lwell had nothing whatever to do with drawing this bill of sale. There was also attached to the motion for a new trial the affidavit of the defendant Jim Stilwell, to the effect that he had for the first time since the trial of said cause been informed of what the testimony of L. M. Kirk would be respecting these matters. The affidavit of L. M. Kirk states that she was not sub *15 poenaed as a witness in the trial of said case, and never mentioned the facts contained in her affidavit until some two hours after the case had been submitted to the jury. It has been repeatedly held by this court that the granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court. Noel v. State, 14 Okla. Cr. 548, 174 Pac. 293; Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499. A new trial because of new evidence discovered material to the defendant should not be granted, unless the evidence is such which could not, with reasonable diligence have been discovered before the trial. Section 5937, Revised Laws 1910. The witness by whom it was proposed to produce the new evidence was the mother of one of the defendants. The very intimate relation existing between the witness and one of the defendants, especially in the- absence of any showing that the mother was not present at the trial of her son, would indicate that very little diligence was resorted to prior to the trial to learn what the mother might have known beneficial to her son. Especially is this view impresséd upon the court because of the fact that the sister of the defendant Kirk testified fully in his behalf. The motion in this case does not state fully the circumstances which make it appear, as a matter of fact, that such evidence was really newly discovered, and could not have' been discovered by the exercise of proper diligence. We believe, therefore, that the trial court was justified in overruling the motion for a new trial, because the motion did not contain statements of facts or circumstances showing the exercise of proper diligence to procure the evidence and to show that it was. nelwly discovered. *16 Secondly, the evidence is to a certain extent cumulative, in that it only tends to corroborate each of thé defendants who testified as witnesses that they had no knowledge or any connection with either the bill of sale or the package of dies, stamps, and stencils. The rule is also well established that a new trial on the ground of newly discovered evidence should not be granted, unless there is a reasonable probability that the new evidence would likely change the result, should a new trial be granted. Howey v. State, supra. When considered with all the evidence introduced at the trial, it is very improbable that, should a new trial be granted and the new evidence submitted, any different result would ensue, especially as to the defendant Stilwell. Stilwell’s connection with Wesley Kirk, both before and after the commission of the larceny, is so thoroughly established by the facts and circumstances in evidence, together with the admissions of the defendant himself, that it is entirely improbable that the mere fact that testimony that a bill of sale to a Ford automobile, the kind of car found in the possession of Stilwell at the time of his arrest, was entirely the work of Wesley Kirk, would have any likelihood of creating a reasonable doubt in the minds of the jurors that IStilwell was not connected with Kirk in this particular larceny. In truth, the evidence that Wesley Kirk forged the bill of sale which iStilwell possessed only tends to strengthen the state’s theory of the case that the three men, Wesley Kirk, Elmer Kirk, and Jim Stilwell, were all present' and active participants in this larceny. It tends to support the theory of the state that Stilwell at least aided and abetted Wesley Kirk in the asportation of the *17 stolen car, knowing that the same was at that time in the act of being stolen. Considering the; alleged newly discovered evidence applicable to the defense interposed by this defendant, we find no reversible error committed by the trial court in overruling the motion, as, there is no reasonable probability or likelihood that the alleged newly discovered evidence would warrant the acquittal of this defendant, or even raise a reasonable doubt of his guilt, when considered in connection with the other evidence against him, and there is no proper showing that such evidence was in fact newly discovered, and no showing of diligence by setting out facts and circumstances in the motion, and no manifest abuse of discretion shown in overruling the motion. For reasons stated, the judgment of, conviction is affirmed. DOYLE, P. J., and ARMSTRONG, J., concur.