
    STATE v. STRAHAN
    (No. 1720;
    Sept. 15, 1931;
    3 Pac. (2d) 79)
    Application submitted by E. E. Lonabaugh, of Sheridan, Wyoming, Attorney for respondent. James A. Greenwood, Attorney General, represented the complainant. No briefs.
   Per Curiam.

This is a disbarment proceeding which has been tried by three district judges and is here for hearing on the record and the recommendation of the trial judges. See § 4, Ch. 51, Laws of 1925.

August 10, 1931, the respondent filed a motion for an order of this court authorizing the taking of additional testimony. This motion on August 11 was called to the attention of the court and denied without written opinion.

In considering the evidence in cases of this kind, we think we should have the benefit of the recommendation of the trial judges based on all the evidence. We do not care to sanction a practice that would permit the submission here of evidence not heard and considered by the trial judges. On the other hand, we do not want to deprive an accused attorney of the opportunity to present newly discovered material evidence which he could not with reasonable diligence have discovered and produced at the trial.

When we denied the motion previously filed by the respondent, we stated informally that applications of that character should be addressed to the District Court, and that, if the judges who took the testimony believed that the new evidence should be taken and considered by them, in addition to what had already been laid before them, they would have authority to re-open the ease for that purpose.

The attorney for the respondent now presents a letter which we have considered as an application for an order that will serve to give official notice of our opinion that the district judges have authority to entertain a motion by respondent for a re-opening of the case for the purpose of taking and submitting newly discovered evidence. The attorney general, representing the complainant, makes no objection to the granting of this application. It will be granted.

If a motion to re-open the case be presented to the district judges, its disposition must be left to the discretion of those judges, who will no doubt consider the following and perhaps other matters: "Whether the evidence could with reasonable diligence have been discovered and produced at the trial; whether it would be merely cumulative, and whether it would probably cause a change, favorable to respondent, in the recommendation heretofore made.

If the case be re-opened, it may be on such reasonable terms as the judges see fit to impose, and the complainant may be permitted to submit further evidence, if it desires to do so.

If the motion to re-open be denied there should be sent to the clerk of this court such parts of the additional record made below as may be necessary for the information of this court in further proceedings here.

If the motion to re-open be granted, and additional testimony be submitted to the District Court, it should be there considered, with the evidence heretofore taken, and then transmitted to this court with a report showing whether the judges care to make any change in their recommendation. The record now in this court may be returned to the district judges if and when desired and requested.

An order will be entered reciting that the district judges are authorized to entertain and act upon the mentioned motion, and to take such further action as may seem proper and consistent with this opinion.  