.1 AN. TERM, 1856. WHITE NT. STATE. trial ; must be such as reasonable diligence could not have secured at the former trial; must be material, and not cumulative ; must be such as ought to produce on another trial, a different result, on the met its, and must go to the merits. A motion for new trial, in general, will not be granted un'ess accompan ied by the affidavit of the newly discovered witness. Appeal from the Circuit Court of Pope County. HE HON. FELIX J. BATSON, T Circuit Judge. Hollowell, for appellants. Jordan, Attorney-General, contra. 511ANI,v, J. The appel- [5405 lants were indicted at the March term, 1855, of the Pope circuit t:ourt, under the 5th section of the 5th Article of the 51st chapter of the Digest, under the title of "Sabbath Breaking." There were two counts. The first was under the 1st clause in the 5th section; and the other, under the second clause of the same section. At the Septem-ber term, 185.5, the oefendants pleaded not guilty ; were tried by a jury, convicted and fined ten dollars each. At the same term, the defendants filed a motion for a new trial, on the ground of newly discovered evidence since the trial and verdict. The motion was supported by the affidavit of one of the appellants ; stating, in effect, that he was not aware of the existence of the evidence newly discovered, until since the trial ; stating furthermore, what he expected to prove, but which we do not deem necessary to state, as it was only cumulative of the evidence, which it appears, from his bill of exceptions, he introduced to the jury at the trial. Neither the motion, nor the affidavit in support of it, shows any diligence on the part of the appellants, to procure the evidence newly discov-WHITE El' AL.
'ered, anterior to the trial. We will V.
not copy the evidence set out in the THE STATE. bill of exceptions, as the appellants do Newly discovered evidence, to afford a ground for not question the propriety of the find-new trial must have been discovered since the former ing of the jury upon that evidence, but
WHITE V. STATE. VOL. 17 predicate their motion for a new trial liminary points of practice, which wholly upon the ground of newly dis- must be conformed to, before a motion covered evidence, which they set out, on the ground of newly discovered evi-and which we hold, is only cutnlative dence will be entertained. It is neces-of that, which they offered to the jury sary, that the party should Metion at the trial. Cumulative evtdence, as the witnessds by name,and what he ex-understood in the sense in which we pects to prove by them. This seems to use it, in this connection, is such evi- have been done in the case before us. dence as goes to support the facts prin- And, in addition to this, that either cipally controverted on the former trial, the witnesses themselves, should state, and respecting which, the party asking on oath, the evidence they can give, or for a new trial, as well as the adverse that the party should add his own belief party, produced testimony. See 'Vhar- to the statement made by the wit-ton's Amer. Grim. Law, 913. nesses. See Burriss v. Wise & Hind as After, or newly discovered evidence, above ; Hollingsworth v. Napier, 3 in order to afford a proper Caine's ReP. 182; Dunn v.• Marrill et 4069 a ground for the granting of a al., 1 Ham. Rep. 382; Brown v. Swan, 1 new trial, must possess the following Mass. Rep. 202; Admits v. Ashby, 2 qualifications: Bibb. 287. 1. It must have been discovered The rule for a new trial, in since the trial. general, will not be granted in 2. It must be such as reasonable "such cases, if supported only [0407 diligence, on the part of the defendant, by the affidavit of the party, or one could not have secured at the former interested. The motion must be ac-trial. companied by the affidavit of the new-3. It must be material in its object, ly discovered witness. And this rule and not merely cumulative, and cor- is as well applicable to criminal, as roborative or collateral. civil practice. See Whart. Amer. Crim. 4. It must be such as ought to pro- Law, 909; Webber v. Tres, 1 Tyler Rep. duce, on another trial, an opposite re- 441; Noyee v. Huntington, Kirby 282. sult on the merits. In the case before us, the motion was 5. It must go to the merits, and not only accompanied by the affidavit of rest merely on a technical defense. one of the appellants. See Whart. Amer. C91772. Law, 908, 909; We, therefore, in view of the above Burris v. Wise & Hind, 2 Ark. Rep. 33, principles, hold, that the court below notes 2 and 3. very properly overruled the appellant's The after discovered evidence, set motion for a new trial iu this cause, out in this case, wants several of the and finding no error in the whole tran-elements and features necessary, to ' script, we consequently, affirm the make it available as a basis of a motion judgment of the Pope circuit court, in for a new trial. For instance, the ap- this behalf. Let the judgment be pellant shows no diligence in the way affirmed, at the appellant's costs. of its procurement for the former trial: Absent, Mr. Justice Scott. it is wholly cumulative of the evidence Ciied:-17-195; 29-63; 33-137. which was before the jury ; and, lastly, it is not of such a character, as ought, or would, likely, produce on another trial, an opposite result. There are, however, other grounds, in addition to the above, deemed pre-
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