
    Keck v. Umphries.
    Where, on amotion for a new trial, the inquiry arises, what was the evidence given to the jury, an affidavit of the defendant as to his belief of what was proved, derived from recollection, or from information received from the jury or his counsel, will be allowed no weight against the ruling of the Court.
    Slander for charging the defendant with larceny. Plea, not guilty. Verdict for the plaintiff. The defendant moved for a new trial on the ground that the words proved on the trial, if spoken at all, were not spoken oil the occasion alleged by the witness, but on a subsequent one. Neither of the affidavits offered in support of the motion, denied the speaking of the words. Held, that they did not, therefore, sustain the motion.
    New trials are rarely, if ever, granted to give an opportunity to impeach the credit of a witness.
    ERROR to the Shelby Circuit Court.
    
      Monday, December 5.
    
   Davison, J.

J.Umphries sued Keck in an action of slander. The declaration charges the speaking of various sets of words, and among them the following, viz.: “Andy and Umphries are the d—d rascals who took my money.” Plea, not guilty. Verdict for the plaintiff below. Motion for a new trial overruled, and judgment on the verdict.

In support of this motion Keck filed two affidavits—his own, and the affidavit of one William Hacker. Keck, in his affidavit, states substantially that upon the trial Umphries called one David Roedefer, who testified that he was present in front of the court-house in Shelbyville, on the afternoon of the 30th of October, 1850, when he heard him, Keck, speak the above words. This was immediately after Andrew Derickson and George Umphries had been, on the complaint of said Keck, tried for larceny. Pie further states that the above set of words, in the opinion of the jury, were the only words proved on the trial, as the jury informed him. His counsel also informed him, and he believes it to be true, that no other set of words was proved by other witnesses. And he verily believes that the verdict was found alone upon Roedefer's testimony. That after the verdict was given he discovered that he could prove by the said Hacker, that the words sworn to by Roedefer were spoken, if spoken at all, on the 7th of January, 1851, on the occasion of another and different trial, and more than a month after this suit was commenced. The fact that he could make such proof by Hacker, or any other witness, was unknown to him until after the verdict was rendered, &c.

The affidavit of Hacker states, in substance, that on the 22d of August, 1851, he had a conversation with Roedefer in Shelbyville. Roedefer asked him if he remembered certain words spoken by Keck in front of said courthouse immediately after Derickson, on complaint for surety of the peace, had been tried before justice Kirk? Hacker replied that he did not. Roedefer then stated that the words spoken on that occasion were these, viz.: “I do not blame TJmphries; but Billy and Andy are the d—d rascals that took my money.” He called Hacker’s attention to the fact that he, Hacker, had acted with squire Kirk on the trial of the surety case, and stated that when Keck spoke the words, Hacker was standing near the courthouse in conversation with one Davis. Roedefer said there was a difficulty between him and Keck. He was subpoenaed in this case, and wished to find out some other who recollected of having heard the words spoken. He did not wish to go into Court and testify without someone to sustain him. The affidavit also states that Hacker was present at the trial of the surety case, and acted with esquire Kirk in the examination of it. This trial took place after the present suit was commenced. That he was standing near the court-house door, and in conversation with the said Davis at the time stated by Roedefer. That Keck was there, but he, Hacker, did not hear the above words spoken. The trial of Derickson and Umphries took place in October, 1850. He was not present at that trial, nor did he know of it until some days after-wards, &c.

Upon the hearing of this motion, it seems to have been a subject of inquiry whether any words other than those sworn to by Roedefer, were proven on the trial. Relative to this matter, the Court could have had no difficulty in arriving at a conclusion. All the evidence in the cause was before it. And if the speaking of other words was shown, the Court, no doubt, heard the proof. But the evidence is not on the record, and we are not, therefore, in possession of the facts requisite to a proper solution of the question. What Keck may have believed or been informed by the jury or his counsel can have no weight against the ruling of the Court. The affidavits, in our opinion, do not sustain the motion. Neither of them denies the speaking of the words. What Roedefer stated out of Court might affect his credibility. But “ new trials are rarely, if ever, granted,” to give an opportunity of impeaching the credit of a witness. 3 Johns. R. 255.— 5 id. 258.—6 Blackf. 496. We think the Court committed no error in refusing to sutain the motion.

M. M. Ray and T. D. Walpole, for the plaintiff.

W. J. Peaslee und A. W. Hubbard, for the defendant.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.  