[39] Furthermore, it does not appear reasonably probable that this evidence, cumulative and impeaching, would have caused the jury to reach a different conclusion regarding the guilt of defendant. ( People v. Peyton (1941), 47 Cal.App.2d 214, 224 [8] [ 117 P.2d 683].) [40] Defendant meritoriously contends that the receipt by him of the two items of property which are, respectively, the subjects of counts 5 and 6, constituted only one criminal transaction and that therefore he should not have been sentenced on two counts.
The judge in this case had very good reason to disbelieve the appellant, the codefendant and Lopez. ( People v. Peyton, 47 Cal.App.2d 214, 223-224 [ 117 P.2d 683].) [9] In People v. Greenwood, 47 Cal.2d 819, 821 [ 306 P.2d 427] it is stated:
We do not believe under these circumstances that the prosecution must find the defendant's affiant, which in some cases would be impossible, bring him to court and call him to the stand in order to lay such a foundation before it can present impeaching evidence. In the case of People v. Peyton, 47 Cal.App.2d 214 [ 117 P.2d 683], the reviewing court affirmed an order denying a motion for a new trial on the ground of newly discovered evidence where the trial court at the hearing considered a counteraffidavit which impeached the affiant in defendant's supporting affidavit. The defendant there produced the affidavit of one Ward who swore he had participated in the robbery charged.
This motion was made on the grounds of newly discovered evidence and was based on an affidavit of Arthur Ayala in which he stated that while he had testified at the trial that he did not remember whether the appellant had swept the shop the evening of his arrest, he (Ayala) had been thinking it over and that he now knew that the appellant had swept the floor before the officers came in and that he saw appellant pick up something from the floor. In People v. Peyton, 47 Cal.App.2d 214, 224 [ 117 P.2d 683], it is said that: "The rule is well established that courts will not grant new trials under subdivision 7 of section 1181 of the Penal Code except upon clear and satisfactory showings that alleged newly-discovered evidence is material, not cumulative, previously unknown to the defendant and that he is not guilty of lack of diligence in failing to produce it at the trial.
[4] The trial court was vested with the discretion to determine the truth of the affidavits offered in support of the motion for a new trial. ( People v. Radz, 119 Cal.App. 435 [ 6 P.2d 527]; People v. Peyton, 47 Cal.App.2d 214 [ 117 P.2d 683]; People v. Poor, 52 Cal.App.2d 241 [ 126 P.2d 146]; People v. Coronado, 57 Cal.App.2d 805 [ 135 P.2d 647].) [3b] The defendants made no showing of diligence to produce the testimony of the purported witness Herbert K. Mann.
The correctness of the above statement of the law is fully supported by the decisions. People v. Peyton, 47 Cal.App.2d 214, 224 [ 117 P.2d 683]; People v. Buck, 46 Cal.App.2d 558 566 [ 116 P.2d 160]; People v. Parisi, 87 Cal.App. 208, 217 [ 261 P. 1072]; People v. Burrows, 27 Cal.App. 428, 434 [ 150 P. 382]; People v. Ross, 134 Cal. 256, 259 [ 66 P. 229]. None of the showing required by these authorities having been made or offered, the application was properly denied.
(Id. at pp. 26-27.) In People v. Peyton (1941) 47 Cal.App.2d 214, the appellate court noted, “the truthfulness of [defendant’s] alleged new evidence is open to grave suspicion…. It is a belated and suspicious confession coming from an incarcerated convict who admitted that he had nothing to lose thereby.
; Id. at p. 27.) In People v. Peyton (1941) 47 Cal.App.2d 214, 223, the appellate court noted, “the truthfulness of [defendant’s] alleged new evidence is open to grave suspicion.... It is a belated and suspicious confession coming from an incarcerated convict who admitted that he had nothing to lose thereby. [He] was a close friend of [defendant], having previously served a sentence with him in state prison, and he was imprisoned in the same cell... with... [defendant] just prior to the motion for new trial.