
    David Comoli v. State of Vermont.
    January Term, 1906.
    Present: Howell, C. J., Tyleb, Munson, Watson, and Miles, JJ.
    Opinion filed February 16, 1906.
    
      Petition for New Trial — Newly Discovered Evidence — Affidavits — Sufficiency—Allegations of Due Diligence.
    
    The statement, in affidavits accompanying a petition for a new trial based on newly discovered evidence, that the affiants “used due diligence” seasonably to obtain such evidence, is mere opinion, and insufficient to show the requisite diligence.
    The newly discovered evidence revealed by affidavits attached to a petition for a new trial in behalf of one convicted of a simple assault, held not likely to produce a different result on another trial.
    Petition for a new trial, brought under V. S. 1662, to the Supreme Court for Washington County at its January Term, 1906, and then heard on petition and affidavits thereto attached. At the September Term, 1905, of Washington county court, the petitioner was. convicted of a simple assault, upon an indictment for an assault with intent to kill one Mary Broggi. The newly discovered evidence relied upon is set forth in the affidavit of Depa Whitney which is attached to< the petition.
    
      
      John N. Harvey for the petitioner.
    
      Hollister Jackson, State’s Attorney, for the State.
   RowELL, C. J.

It is considered that the newly discovered evidence attached to the petition would not be likely to produce a different result on another trial.

It is also' considered that the affidavits thereto attached do- not show the requisite diligence. They state only that the affiants “used due diligence,” which is only an opinion, upon which the Court cannot act. They should have stated the facts, that the Court might judge of the matter.

Petition dismissed.  