Parker v. Commonwealth

255 S.W.2d 1003, 1953 Ky. LEXIS 699

• Court: Court of Appeals of Kentucky
• Decided: March 6, 1953
• Status: Published

Opinion

CAMMACK, Justice.

George Parker was sentenced to five years in prison on a charge of robbery. On this appeal he is insisting that the judgment should be reversed because the lower court erred in refusing td grant him a new trial on the ground of newly discovered evidence.

The prosecuting witness, Arnold Whitt, said that, while he, Parker and others were lodged in the 'Montgomery County jail, Parker and an unidentified person beat him and robbed him of a 17 jewel Benrus watch. Whitt’s father and Frankie Martin, who were also in jail at the time of the alleged offense, corroborated Whitt’s testimony^ Martin, said also that Parker attempted to sell him Whitt’s watch ■ the next day. In support of his motion for a new trial, Parker filed his own affidavit and that of Clifton Chambers. Chambers ' said that about three weeks after Whitt and the others were in jail he was cleaning a cell therein and found a Benrus wrist watch among some newspapers which matched the description of the one reported'to have been stolen from Whitt.

Parker’s affidavit merely recited his conviction, the testimony of Martin -and that Clifton Chambers had found a Benrus watch in the jail. He.did not say.that, by the exercise of due diligence, the newly dis.covered evidence could not have been obtained before the trial. Nor did he say that any effort had been made to search the jail before the trial.' Thus' one' of the essential elements of" an affidavit in support of a new trial was omitted. Spurlock v. Commonwealth, 311 Ky. 238, 223 S.W.2d 910, and cases cited therein. _ Furthermore, the main effect of Chambers’ statement, that he found a Benrus watch while- cleaning the jail would have been to impeach the testimony of Frankie Martin;. Martin having said that Parker had offered to sell him Whitt’s watch.

Judgment affirmed.