
    No. 14,984.
    Miller v. Cook.
    New Trial. — Newly Discovered Evidence. — Slander. —In an action for slander, a new trial should not be granted the defendant on the ground of newly-discovered evidence where the evidence alleged to have been discovered is of an act of unchastity committed long after the slanderous words were published.
    Same. — Newly discovered evidence, to authorize a new trial, should be of such a character as to render it probable that a second trial would result differently from the first.
    From the Pike Circuit Court.
    
      E. A. Ely, for appellant.
    
      F. B. Posey, A. N. Taylor and E. P. Richardson, for appellee.
   Elliott, J.

In the case between the same parties, growing out of the same transaction, we have given an outline of the controversy, and we need only add that the present appeal is prosecuted from a judgment denying a new trial asked upon a complaint filed after the close of the term at which the original judgment was rendered. The ground upon which a new trial is claimed is that the appellant, since the trial, has discovered evidence that the appellee had sexual intercourse with a man named Clark.

Filed June 5, 1890.

Waiving a decision of the question whether the appellant could prosecute a complaint for a new trial and an appeal at the same time, we affirm the judgment below for the reason that the trial court justly ruled that the facts stated do not show that the appellant was entitled to a new trial.

•The judgment of the trial court is right for these reasons:

1st. The act of sexual intercourse, which it is alleged that the appellant could prove, occurred long after the slanderous words were published.

2d. The evidence is not such as renders it probable that a second trial would result differently from the first.

The questions raised upon what counsel say is a complaint to review are disposed of by the judgment in the case first brought to this court.

Judgment affirmed.  