
    THE REPUBLIC OF HAWAII vs. HANG FOOK AND AH KAU.
    Exceptions.
    Hearing, September 19, 1894.
    Decision, October 26, 1894.
    Judd, C.J.,. Erear J., and Cooper, Circuit Judge, who sat IN PLACE OF BICKERTON, J., ABSENT.
    (1) Held, following Republic of Hawaii vs. Saku Tokuji, page 548 ante, that circuit courts have the power to grant or deny new trials iu criminal cases.
    
      (2) Affidavits in support of motion for a new trial, on the ground of newly discovered evidence, must show that the evidence was newly discovered, and that the exercise of reasonable diligence could not. have secured the evidence for use at the trial.
    (3) Affidavits disclosing’ the existence of evidence cumulative to that offered by defense, furnish no ground for a new trial. ■
    (4) Evidence which goes only to impeach the credit or character of a witness, is not sufficient ground for a new trial.
   Opinion of the Court, by

Judd, C.J.

The defendants were convicted at the last August Term of the Circuit Court, First Circuit, of the offense of selling opium and the defendant Hang Fook was on the 11th August sentenced to pay a fine of $600 and be imprisoned at hard labor for eighteen months. Ah Kau being recommended by the jury to the mercy of the court sentence on him was suspended until next term.- The defendant Hang Fook moved on the 16th August for a new trial on the ground of newly discovered evidence which was denied and duly excepted to this Court. Five affidavits are filed in support. None of these show that the evidence was newly discovered, or that the exercise of reasonable diligence could not have secured the evidence for use at the trial. By undisputed authority in this Court and elsewhere such affidavits are insufficient.

Three of the affidavits -are to the effect that Hang Fook was not in his room at the hour when the alleged sale of opium took place. This is evidence merely cumulative to the defense of an alibi offered at the trial. This is no ground for a new trial.

See Hilliard, N. T., p. 380 and cases cited.

Weston vs. Montgomery, 2 Haw., 309.

Abela vs. Louika, 6 Haw., 57.

The affidavits of Aiana and W. C. Achi, the attorney, only go to discredit the testimony of Ah Eau the co-defendant. This also is not ground for a new trial.

Hilliard on N. T. p. 385.

Gay vs. McCandless, 7 Haw., 365.

We therefore overrule the exceptions. The motion of the Attorney-General to dismiss the exceptions on the ground that the Circuit Court has no authority to grant new tiials having been considered and decided adversely to the prosecution in the case of the Republic of Hawaii vs. Saku Tokuji on the 15th October, 1894, (page 548 ante) we overrule the same.

Attorney-General W. O. Smith, for the prosecution.

W. G. Achi, for defendant.  