Cowan v. Smith

Mr. Justice Beckwith delivered the opinion of the Court: After a verdict against the defendant, he moved for a new trial on the ground of the absence of a material witness. The overruling of this motion is now assigned as error. A motion for a new trial, founded on the absence of a material witness, or upon newly discovered testimony, should be supported by the affidavits of the witnesses by whom it is proposed to prove the facts relied upon; or, some excuse should be shown for not obtaining them. Cummins v. Waldren, 4 Blackf. 307; Denn v. Morrell, 1 Hall S. C. 382; Gibson v. The State, 9 Ind. 264; 1 Graham & Waterm. on New Trials, 210; 3 id. 1067, et seq. The motion in the present case was made solely upon the appellant’s affidavit, and it states no excuse for not procuring the affidavit of the witness. In this respect it was clearly insufficient; and the motion for a new trial made thereon was properly overruled. The judgment of the court below is, therefore, affirmed. Judgment affirmed.