Opinion
4 Div. 15.
December 22, 1938.
Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.
Cope Cope, of Union Springs, for appellants.
The evidence was discovered since the trial and could not have been discovered before the trial by the exercise of due diligence. Such evidence is material, not merely cumulative or impeaching, and will probably change the result. Defendants were, therefore, entitled to a new trial on ground of newly discovered evidence. Morris v. State, 25 Ala. App. 156, 142 So. 592; Smith v. State, 23 Ala. App. 488, 128 So. 358; Folmar v. State, 22 Ala. App. 317, 116 So. 110; Middleton v. State, 22 Ala. App. 146, 113 So. 625; Sparks v. State, 24 Ala. App. 585, 139 So. 300; Graham v. State, 23 Ala. App. 553, 129 So. 295.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
It does not appear that due diligence has been exercised; defendants appeared ready for trial and sought no continuance or postponement; the matter claimed as newly discovered evidence is merely cumulative. The right to a new trial is, therefore, not shown. Cosby v. State, 202 Ala. 419, 80 So. 803; Fries v. Acme White Lead Color Wks., 201 Ala. 613, 79 So. 45; Collins v. State, 217 Ala. 212, 115 So. 223; Geter v. Central Coal Co., 149 Ala. 578, 583, 43 So. 367. The motion, on the ground stated is addressed to the sound discretion of the court. Aaron v. State, 181 Ala. 1, 61 So. 812.
This record presents but one main question, that is, the action of the trial court in overruling the defendants' motion for a new trial.
Quoting from the brief of appellants' counsel: "To warrant a new trial for newly discovered evidence it must appear that the evidence will probably change the result; that it has been discovered since the trial; that it could not have been discovered before the trial by the exercise of due diligence; that it is material and that it is not merely cumulative or impeaching."
We may pretermit the question of due diligence as the newly discovered evidence was merely cumulative of the defense of alibi which was fully set up by several witnesses for these two defendants, as well as the physical injury or condition of the foot of the defendant Teal. The evidence of Duffy, as disclosed by his affidavit, merely tended to the impeachment or contradiction of the State's witness, Rhodes, as to the testimony given upon the trial and did not come within the rule. Slaughter v. State, post, p. 26, 185 So. 373 (companion case).
The only question argued or insisted upon was the action of the trial court in refusing the motion for a new trial, but we have not overlooked the exceptions to the ruling on the evidence and hold that the trial court did not commit reversible error in these rulings.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.