Davis v. Custer

230 Mass. 603

Opinion

Carroll, J.

This is an action for malicious prosecution. There was a verdict for the plaintiff. The defendant moved for a new trial on the ground of newly discovered evidence. The plaintiff testified at the trial that when arrested he was handcuffed and' taken from his home to the West Roxbury police station. His daughter testified, corroborating him, that while he was walking handcuffed with the officer she met “quite a few” people whom she knew. The alleged newly discovered evidence was based on the testimony of three police officers that no handcuffs were used and that during the walk to the station house they met no one except a police officer. The judge denied the motion.

The granting of a motion for a new trial ordinarily is a matter within the discretion of the trial judge, and we find nothing in this record to show an abuse of this discretion. A judge is not bound, as matter of law, to grant a new trial because of newly discovered evidence which if presented to a jury would warrant the reaching of a different result. Powers v. Bergman, 210 Mass. 346. Manzigian v. Boyajian, 183 Mass. 125.

Exceptions overruled.