
    No. 10211.
    Petition of GERALD F. DAVIS for a Writ of Mandate and to Proceed in Forma Pauperis.
    Decided June 1, 1961.
    Petition for Rehearing and for Writ of Mandate denied June 12, 1961.
    361 P.2d 963.
   PER CURIAM.

Original proceeding brought by Gerald F. Davis, an inmate of the Montana State Prison, wherein he seeks a writ of mandate to compel the District Court of Gallatin County to proceed to determine the merits of a motion for new trial which he alleges he filed with said Court on some date subsequent to April 11, 1961.

The files of this Court disclose that judgment in the case of State of Montana v. Gerald F. Davis was entered in the District Court on October 31, 1960.

Grounds for granting a new trial are found in section 94-7603, R.C.M.1947, and the motion, in part, is based upon subdivision 7 as to alleged newly discovered evidence, which section 94-7604, R.C.M. 1947, provides must be filed within 30 days after the discovery of the facts upon which the party relies in support of his motion. No affidavits were filed with the motion as provided by section 94-7605, R.C.M.1947.

In his petition here, Davis alleges the new evidence is the true fact concerning a previous commitment to the State Hospital, just discovered, which he could not with reasonable diligence produce at the trial. Previous petitions filed in this Court by Davis aver that his defense was insanity, that he had a copy of his commitment paper, that such commitment was mentioned several times during his trial, that a sanity hearing was requested, that the district judge, county attorney and his defense counsel were all aware of the previous commitment. In such circumstances it would appear that there is nothing “newly discovered” about his previous commitment and therefore his motion for new trial upon that ground comes too late.

As to the second ground of his motion, section 94-7604, R.C.M.1947, provides that the notice of motion must be filed within 10 days after rendition of the verdict, which was not done here.

No cause appearing for issuance of the writ requested, the application is denied and the proceeding ordered dismissed.  