
    STATE, Respondent, v. WAGEMANN, Appellant.
    (183 N. W. 112.)
    (File No. 4859.
    Opinion filed June 2, 1921.)
    New Trial — Rape—Newly Discovered Evidence, Non-cumulative, Non-diligence Re, Denial Affidavits, Motion Denied, Non-abnse of Discretion.
    Where, in a prosecution for rape, new trial was sought 'on ground of newly discovered evidence, supporting affidavits tending to show defendant was not at the home of complaining witness on date in question; there 'being no showing of diligence in procuring such testimony on the trial, and such evidence being cumulative and being directly denied in denial affidavits properly admitted, concerning alleged newly discovered evidence; held, no abuse of discretion in denying motion.
    Polley, P. J., not sitting.
    The Defendant, John Wagemann, was convicted of the crime of rape, and he appeals.
    Affirmed.
    
      Van Slyke & Agor, and C. S. Acker, for Appellant.
    
      Byron S. Payne, Attorney General, Edwin R. Winans, Assistant Attorney General, and A. L. Bartlett, -State’s Attorney, for Respondent.
    Appellant submitted that: Proposed new evidence should be deemed true, and cited: McClellan’s Estate, 21 S. D. 209.
    Respondent cited, to same point: State v. Southmayd, 37 S. D. 37s, 158 N. W. 404.
   MoC'O'Y, J.

From a judgment of conviction of the crime of statutory rape and an order denying a new trial, the defendant appeals.

The sufficiency of the evidence to sustain the verdict is not questioned. Motion for new trial, on the ground of newly discovered evidence, was made based on affidavits tending to show that appellant was not at the home of complaining witness on September 20, 1919, the date when said offense was testified by the complaining witness as having been committed. No diligence to procure such testimony on the trial is shown. The alleged newlly discovered evidence is cumulative and is directly denied. The affidavits in denial of the statements contained in the moving affidavits, relating to the alleged newly discovered evidence, were properly admitted. State v. Southmayd, 37 S. D. 375, 158 N. W. 404. There was no abuse of discretion on the part of the trial court in overruling the motion for new trial.

The judgment and order appealed from are affirmed.

PO'LLEY, P. J., not sitting.  