Opinion
Department One
Appeal from a judgment of the Superior Court of Tulare County and from an order refusing a new trial. W. A. Gray, Judge.
COUNSEL:
Roth & McFadzean, for Appellant.
W. F. Fitzgerald, Attorney General, Charles H. Jackson, Deputy Attorney General, F. B. Howard, District Attorney, and Daggett & Adams, for Respondent.
JUDGES: Van Fleet, J. Garoutte, J., and Harrison, J., concurred.
OPINION
VAN FLEET, Judge
Defendant was convicted of an assault with intent to commit mayhem, and appeals from the judgment and order denying his motion for a new trial.
1. We can see no abuse of discretion on the part of the court below in denying defendant's motion for a new trial, made upon the ground of newly-discovered evidence. As has been repeatedly held by this court, a motion for a new trial is addressed to the sound legal discretion of the trial court, and the action of the latter will not be disturbed, except in an instance manifesting a clear and unmistakable abuse of such discretion. This rule is peculiarly applicable to an application based upon the ground of newly-discovered evidence, which not only involves an enlarged discretion in the trial court, but has never been looked upon with favor, but rather with distrust. (Hobler v. Cole , 49 Cal. 250; Arnold v. Skaggs , 35 Cal. 684.) To entitle the plaintiff to a new trial on this ground it must appear, among other things, that the new evidence be not cumulative merely; that it be such as to render a different verdict reasonably probable upon a retrial; and that the evidence could not with reasonable diligence have been discovered and produced at the trial. (1 Hayne on New Trial and Appeal, sec. 88.) Assuming that defendant's affidavits, which are very general in their terms in that regard, satisfy the last of these requirements, we are very clear that they fall short of complying with the first two. In the first place, we regard the evidence as purely cumulative. Its only tendency would be to establish a state of ill-will on the part of Crawford, the prosecuting [42 P. 237] witness, against the defendant, and an indefinite threat by Crawford to use violence upon defendant, if the latter should again come upon Crawford's place. The record discloses that evidence of exactly the same general character was introduced in behalf of defendant at the trial through the witness, M. F. Demasters, who testified to threats and expressions of ill-will, made by Crawford, of quite as specific and violent a character as those proposed to be established by the evidence newly discovered. But, in the next place, while the mere fact that the new evidence be cumulative is not conclusive against defendant's right to a new trial on that ground, we are satisfied that the evidence is not such as to make a different result on a new trial obviously probable. To the contrary, the impression made by a consideration of the proposed evidence, in the light of that taken at the trial, is rather unfavorable than otherwise as to the probability of its producing any different result. Under such circumstances we are not at liberty to disturb the order.
2. The court was clearly right in its ruling in allowing the prosecution to show a threat or attempt by defendant to assault the prosecuting witness with a gun, a few minutes before the final assault was committed. The evidence on the part of the people tended to show that it was all a part of one and the same transaction. In fact, if the evidence of the people be true, there was one continuous and aggravated assault committed by defendant upon the witness Crawford, from the time defendant threatened him with the gun until the biting and wounding were accomplished. The evidence was, therefore, admissible as part of the res gestae . 3. The objection arising upon the cross-examination of the witness Ward Demasters, and the further one as to the admissibility of evidence of his general bad character for truth, etc., a few years prior to the fact, are trivial and involve no error. The first was proper as tending to exhibit the feeling of the witness, and the objection to the latter went to its weight and not its admissibility.
We find no error in the record, and the judgment and order denying a new trial should be affirmed.
It is so ordered.