Summary
In People v McAllister, 16 Mich. App. 217; 167 N.W.2d 600 (1969), the affiant stated that he and another identified person had committed the crime and that the defendant in that case had not participated.
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Docket No. 6,011.
Decided February 26, 1969.
Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted Division 1 January 15, 1969, at Detroit. (Docket No. 6,011.) Decided February 26, 1969.
Patrick McAllister was convicted of damaging a safe and breaking and entering. Defendant appeals. Reversed and remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solictor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Kenneth A. Webb, for defendant on appeal.
BEFORE: FITZGERALD, P.J., and R.B. BURNS and BRONSON, JJ.
Defendant was found guilty of damaging a safe, CL 1948, § 750.531 (Stat Ann 1954 Rev § 28.799), and breaking and entering, MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305).
Defendant moved for a new trial on the grounds of newly discovered evidence. The new evidence is an affidavit of Gregory Johnson stating that he and one Larry West committed the offense and the defendant did not participate.
The test for granting a defendant a new trial based on newly-discovered evidence is as follows:
"The rule concerning granting a new trial on the basis of newly-discovered evidence requires that the following 4 factors must be present: (a) That the evidence is newly discovered, (b) that the evidence is not merely cumulative, (c) that the evidence is such as to render a different result probable on retrial, (d) that the defendant could not with reasonable diligence have produced it at trial." People v. Keiswetter (1967), 7 Mich. App. 334, 343, 344.
Johnson's statement was newly discovered and is not cumulative. It goes to the heart of McAllister's defense, which is that he did not commit the crime.
The trial judge should have granted the motion for a new trial.
Reversed and remanded for a new trial.