Opinion
Commissioners' decision. Department 2.
Appeal from superior court, city and county of San Francisco.
SYLLABUS
1. VERDICT -- EVIDENCE.
Verdict held sustained by the evidence.
2. NEW TRIAL -- NEWLY-DISCOVERED EVIDENCE.
Where a motion is made for a new trial on the ground of newly discovered evidence, if it was in the power of the person so moving to have produced the evidence on the first trial, the motion is properly denied.
John D. Whaley, for appellant.
The Attorney General, for respondent.
FOOTE, C., BELCHER, C. C.; SEARLS, C.
OPINION
FOOTE, C.
The defendant was convicted of the crime of embezzlement, upon information under section 508 of the Penal Code. A motion for a new trial was made in his behalf and denied. From the order made therein and the judgment of conviction he appealed. The grounds of this appeal are that the verdict of the jury was contrary to the evidence, and that the court should have granted a new trial for that reason and that of newly-discovered evidence. The preponderance of the evidence certainly went to prove the guilt of the defendant as charged, and the verdict against him should not be disturbed. People v. Ah Loy, 10 Cal. 301; People v. Gill, 45 Cal. 285; People v. Simpson, 50 Cal. 304.
It appears that it was within the defendant's power to have introduced on his trial the most of that which he terms newly-discovered evidence. And the material parts of it are flatly contradicted by a counter-affidavit of Mr. Fenner.
There is no error in the record, and the judgment and order should be affirmed.
We concur: BELCHER, C. C.; SEARLS, C.
BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.