
    (96 South. 15)
    No. 25473.
    STATE v. WYNNE et al.
    (Jan. 27, 1923.
    On Application for Rehearing, April 2, 1923.)
    
      (Syllabus by Editorial Staff.)
    
    1. Criminal law <®=^938(I) — New trial may he granted for cumulative evidence which might warrant an acquittal.
    While a new trial should not be granted for newly discovered cumulative or corroborative evidence of facts not entirely inconsistent with the verdict, where newly discovered evidence, though cumulative, might warrant an acquittal, a new trial may be granted.
    Land and St. Paul, JJ., dissenting.
    On Application for Rehearing.
    2. Criminal law <®=»II8I — Case remanded for decision of motion for new trial on the merits.
    Where trial judge denied new trial on sole ground that newly discovered evidence was cumulative without going into its merits, and on appeal it is claimed the evidence was not newly discovered, the case will be remanded'for decision of the motion on its merits.
    Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.
    George W. Wynne and another were convicted of an offense, and they appeal.
    Remanded on rehearing for decision of defendant’s motion for new trial.
    J. Rush AVimberly, of Arcadia, for appellants.
    A. V. Coco, Atty. Geni', and W. D. Goff, Disf. Atty., of Arcadia (T. S. Walmsley, of New Orleans, of counsel), for the State.
   O’NIELL, C. J.

The only question presented in this case is whether the rule that a new trial of a criminal case should not be allowed for the hearing of newly discovered evidence ¿hat would be cumulative or corroborative of evidence that was heard on the original trial has its exceptions. The newly discovered evidence on which the motion for a new trial was founded in this case consisted of the testimony of eight witnesses as to facts which, for the most part, appear to be of very grave importance. The motion contained the usual and necessary allegations that due diligence had been used for procuring evidence before the trial, that the defendants and their attorneys were not aware before the trial of the evidence discovered thereafter, and that the newly discovered witnesses could and would be produced at another trial. It is not contended on behalf of the state that there was a lack of diligence on the part of the defendants or their attorneys, or that there was even a suspicion that the alleged newly discovered evidence was not, in fact, newly discovered. The .only reason given by the district judge in his statement per curiam for overruling the motion for a new trial was:

“The court is of the opinion that the trial and verdict were in accordance with the law and the evidence. The facts set out in the motion as newly discovered evidence are matters that were gone into on the original trial, and, at best, were only cumulative evidence.”

From the statement that the matters or issues to which the alleged newly discovered evidence had reference had been contested or “gone into on the original trial,” it must be conceded that the alleged newly discovered evidence was material to the issues in the case.

In Wharton’s Criminal Procedure (10th Ed.) vol. 3, § 1807, p. 2253, after a statement of the general rule that a new trial should not be allowed for hearing newly discovered evidence that would be only cumulative of evidence that was heard on the original trial, it is said:

“But it is otherwise if sucl> new evidence consists of a strong mass of proof previously unknown to the party.” i

In 20 R. C. L. § 77, p. 295, the rule and the exceptions thereto' are stated thus:

“As a general rule, a new trial will not be granted on account of the discovery of facts and circumstances merely cumulative in their character. The reason of the rule is that public policy, looking to' the finality of trialá, requires that parties be held to diligence in preparing their cases for trial, and it is not, strictly speaking, an independent rule, but a mere corollary of the requirement that the newly discovered evidence must be such as to render a different result probable on a retrial of the case. The rule must, however, be taken in its proper sense, and is not to be understood as precluding a new trial in every case where the new testimony relates to a point contested on the former trial; for, if it were so,'a new trial would seldom, if ever, be granted in any case. The rule, when properly applied, is a salutary guide to the discretion of the court, and where the testimony is strictly cumulative and merely increases the weight of evidence, leaving the cause still in doubt; or where it is of such a nature that its truth may be conceded without justifying acquittal in the face of other evidence, a new trial will not be granted. On the other hand, in a number of cases, the courts have recognized the fact that a new trial should be granted for newly discovered cumulative evidence, where it is probable that the effect of such evidence would be to produce a different verdict on retrial. In other cases it is held that a new trial should be granted for newly discovered cumulative evidence when it is positive and conclusive. -Such language, of course, is equivalent to requiring that the cumulative evidence be of sufficient force to render a different verdict probable.”

In the late case of State v. Glover, 140 La. 726, 73 South. 843, after reviewing and reconciling all of the decisions of this court, maintaining, as a general rule, that a new trial should not be granted to hear newly discovered evidence that would be merely cumulative, we said:

“When it is shown, on an application for a new trial of a criminal case on the ground of newly discovered evidence, that there was^ no lack of diligence on the part of the defendant to procure the evidence before the trial, that the evidence could not have been produced on the trial, that it is material and important to the defense made in the case, as to which there was conflicting evidence, and that the newly discovered evidence is not apparently incredible or suspicious, the trial judge is not justified in refusing to grant the new trial on the ground merely that the evidence would be only cumulative of other evidence heard by the jury, and would not, in the opinion of the judge, affect the verdict.”

In State v. Ferguson, 114 La. 70, 38 South. 23, where the ruling of the court turned upon the finding that the' defendant had not used due diligence, it was acknowledged that the rule against granting a new trial for hearing newly discovered cumulative evidence was “not absolutely inflexible.”

In State v. Brown, 121 La. 599, 46 South. 664, it was held:

“A new trial must be granted where important evidence has been discovered since the trial and due diligence had been used. The fact that the judge does not believe that the evidence would change the verdict is immaterial. Whether it would or not is a question, not for the judge, but for the jury.”

In State v. Frisbie, 41 La. Ann. 615, 6 South. 139, the syllabus of the opinion, which is in accord with the text, reads:

“In a motion for new trial on the ground of newly discovered evidence, if the evidence be newly discovered, if it be credible and unsuspicious, and if it be material and important in the case, the new trial should be granted.”

And in the opinion itself it is said:

“The judge a quo may be right in his conviction that it [the newly discovered evidence] could not have sufficient weight to alter the verdict in the ease, but it lies within the province of the jury to determine that question, and we do not feel authorized to anticipate their conclusion.”

We do not approve the statement made in the cases cited that the trial judge, in considering a petition for a new trial on the ground of newly discovered evidence, has nothing to do with the question whether the newly discovered evidence might warrant a different verdict. We said in State v. Glover, supra, that it was the province of the judge to have in mind whether the newly discovered evidence was of such importance 'that it might have affected the result if the jury had heard it. The reason for overruling the motion for a new trial in this case was not that the judge did not consider the newly discovered evidence of sufficient importance to affect the result. We are convinced that the mass of evidence mentioned in the motion for a new trial might warrant an acquittal on a retrial of the ease.

It is true that in several eases this court has stated the proposition broadly, and as if it were' without exception, that a new trial of a criminal case should not be granted for the purpose of hearing newly discovered evidence that would be only cumulative or corroborative of evidence that was heard’ on the original trial. All of the decisions in which the rule was referred to, however, were reviewed and analyzed in our opinion in the late case' of State v. Glover, supra; and it was shown that this court had never declared that the rule was without exception. The conclusion then reached was deliberate and unanimous. It was said that, if the . fact intended to be proven by the newly discovered evidence was not disputed on the original trial, or if it was so convincingly proven that it would be futile to add more evidence of the fact, the rule that a new trial should not be granted to hear newly discovered cumulative evidence would be applicable. It was said, too, that it was the province of the judge to determine, from the evidence heard on the original trial, whether the newly discovered evidence would he sufficiently important to justify setting aside the verdict arid granting a new trial. What we had in mind was that, if the fact or facts intended to be proven by the newly discovered evidence would be not entirely inconsistent with the verdict rendered, a new trial should not be granted merely to add cumulative or corroborative evidence of such fact or facts. We have not been referred to an opinion of any court or text-writer in conflict with the opinion which we expressed in State v. Glover; and no reason has been suggested for overruling the decision.

The verdict and sentences appealed from are annulled, and it is ordered that this case be remanded to the district court for retrial.

LAND, J., dissents and gives reasons.

ST. PAUL, J., dissents.

LAND, J.

(dissenting). In the case of State v. Ferguson, 114 La. 74, 38 South. 24, cited in the opinion of the majority, we said:

“In State v. Albert, 109 La. 210, 33 South. 199, the Chief Justice, as the organ of the court, said: ‘Where a court refuses a new trial on the ground that the newly discovered evidence offered is merely cumulative, it is tantamount to saying that, were it offered in a new trial, the result of the second trial would not, in its opinion, be different from that of the first.’
“As the record in this case does not contain the evidence heard upon the trial, the opinion of the trial judge upon the question whether the evidence sought to be presented would be merely cumulative thereto, and whether, if heard upon a new trial, it would be likely to bring about a result different from that already arrived at, is necessarily conclusive in this court." (Italics mine.)

So the reason given by the trial judge in the present case for overruling the motion for a new trial that “the facts set out in the motion as newly discovered evidence are matters that were gone into on the original trial, and, at best, were only cumulative evidence,” is necessarily conclusive in this court: First, upon the question that the newly discovered evidence was merely cumulative; and éecond, upon the question that it would not have changed the result on the second trial, as the evidence heard upon the trial is not contained in the record in this case. '

In the case of the State v. Sloan, 120 La. 170, 45 South. 50, the court said:

“The judge a quo, however, states that it was cumulative, and we find in the record no basis upon which to review his finding upon that subject. As was said in the case of State v. Albert, 109 La. 209, 33 South. 199 (to which we are referred by defendant’s counsel): • ‘We have no knowledge of what evidence was adduced at the trial of the cause. He (the judge) knew what it was, and saw and heard the witnesses testify. He was in a position to judge what effect, if any, the testimony of the alleged newly discovered witnesses would likely have had upon the jury, had it been introduced, and what it would be likely to have upon a second trial.’ See, also, State v. Ferguson, 114 La. 73, 74, 38 South. 23. The judgment appealed from is therefore affirmed.” (Italics mine.)

In the case of the State v. Folden, 135 La. 795, 66 South. 225, in which a new trial had been overruled by the lower court for lack: of proper diligence and because the newly discovered evidence was simply cumulative, the court said:

“The evidence in the case was not all taken down, and it is not in the record; therefore we cannot decide that the evidence was or was not cumulative. The ruling cannot be reviewed. State v. Sloan, 120 La. 170, 45 South. 50 ; State v. Pamelia, 122 La. 207, 47 South., 508.” (Italics mine.)

This court has repeatedly held that, where the trial judge rules that the evidence relied on for the purpose of an application for a new trial would be cumulative, and the transcript does not contain the evidence introduced at the trial, there is no basis upon which this court can review such ruling, which is necessarily conclusive in this court for that reason.

The judgment appealed from should be affirmed.

I therefore respectfully dissent from the opinion of the majority of the court in this case.'

On Application for Rehearing.

PER CURIAM.

In the state’s application for a rehearing the Attorney General avers that, of the eight witnesses named in the defendant’s motion for a new trial, seven were subpoensed and six actually testified in the original trial of the case. That was not said by the district judge as a reason for overruling the motion for a new trial. In fact, he did not go into the merits of the motion. The state makes a sufficient showing, however, to warrant our granting the alternative relief asked for; that is, that the case be remanded to the district court to determine whether the alleged newly discovered witnesses were in fact newly discovered.

The rehearing is granted. The decree rendered on the 27th day of January, 1923, annulling the verdict appealed from and remanding this case for a new trial is itself annulled, and it is now ordered that the sentence be and it is, annulled, that this case be remanded to the district court for a trial and decision of the defendant’s motion for a new trial, on its merits, and particularly to determine whether the alleged newly discovered evidence was in fact newly discovered, and for further and final proceedings according to law.  