Chandler, C. J.
Defendant was convicted and sentenced for tbe crime of statutory rape, said offense having been charged in the information and established by the testimony of the complaining wit
ness as occurring on the evening of April 24, 1940, sometime between 6:45 and 8:30 o ’clock.
The defense was an alibi and among the alleged errors to be reviewed is tbe refusal of tbe trial court to grant a new trial on tbe ground of newly-discovered evidence.
Defendant was engaged in tbe sale of electrical appliances. He claimed that be bad never seen the complainant until March 15, 1941, tbe evening be was arrested, and that on tbe evening of April 24, 1940, be was at tbe home of some people to whom be bad sold an electric range discussing with them tbe operation thereof, and which appliance be bad installed in their borne on tbe previous day.
Tbe electric stove bad been sold to a Mr. and Mrs. John Tomaniea, who lived with tbe latter’s parents, Mr. and Mrs. Adrian J. Yan Boggelin. Attached to and in support of tbe motion for a new trial were tbe affidavits of defendant, Mrs. Yan Boggelin, Mr. and Mrs. Tomaniea and a Mr. and Mrs. Weaver, neighbors of tbe Yan Boggelins and tbe Tomanicas.
Tbe affidavit of defendant stated ’ that although be bad no record thereof be was certain that be was at tbe Yan Boggelin home between 7 and 8 o’clock p. m. on the evening of tbe alleged offense discussing tbe operation of the stove; that long before tbe trial be bad talked with Mrs. Van Boggelin and Mr. and Mrs. Tomaniea concerning bis case and that although they all remembered that be bad called and instructed them in tbe use of tbe stove, none of them could recall whether it was tbe evening of tbe day tbe stove was delivered or the evening of tbe following day; that bis wife talked with these people again about tbe same matter some two weeks before tbe trial but that they were still unable to fix tbe date; that be made every reasonable effort to obtain evidence as to bis claimed whereabouts at tbe time
of the alleged offense; that it was not until after the trial that he learned that Mr. and Mrs. Weaver, heretofore mentioned, had knowledge of facts which would fix his whereabouts at the time in question and that they would testify that they had seen him at the Van Boggelin and Tomanica home at that time.
The affidavit of Mrs. Van Boggelin sets forth that although she had not been able to recall previously the date when defendant had been at her home to discuss the operation of the electric stove, since the trial of the cause her recollection of the event had been refreshed by a conversation with her neighbor, Mrs. Weaver, and that she then knew that the instructions took place on the evening of the day following delivery of the appliance. This affiant also stated that she now recalled that on the evening of the day the stove was delivered, Mr. and Mrs. Weaver came over to see it and that it was not until the following evening that defendant came to the house.
The affidavits of Mr. and Mrs. Tomanica 'are similar to that of Mrs. Van Boggelin. They stated that since the trial of the case their memory had been refreshed by a conversation with the Weavers and that they now remembered that the stove was demonstrated by defendant on the evening following the installation thereof.
Mr. Weaver’s affidavit set forth that on the day the stove was delivered, he went to the Van Boggelin home with his wife and spent the evening; that on the following evening, shortly before dark, he saw the defendant drive by his house; and that later, when it had become somewhat darker and the lights in the house had been turned on, he looked out of the window and saw defendant in the Van Boggelin home talking to Mrs. Van Boggelin. The affidavit
further stated that he did not remember the date hut that he was certain he saw defendant' at the Yan Boggelin home the evening of the following day after delivery of the stove.
The affidavit of Mrs. Weaver stated that she and her husband spent the evening at the Yan Boggelin home the day the stove was delivered -and that after the trial Mrs. Yan Boggelin and Mrs. Tomanica had stated to her that defendant had been to their home either the day the stove was installed or the evening of the next day but they could not recall just when and that she then remembered and reminded them that on the day following the stove installation Mrs. Yan Boggelin had ashed her for instructions in the use of the stove.
Defendant had testified that his records showed that he had delivered the stove on April 23, 1940, and claims that a new trial should have been granted because the testimony of the affiants above mentioned would establish his whereabouts at the' time of the alleged offense.
The people claim there was no error in denying the motion for a new trial because the testimony, as appears from the affidavits, would be cumulative and that defendant did not use due diligence to discover the same. Defendant, while apparently conceding that the testimony of these people would be merely cumulative, claims that the rule does not apply where it is given in support of the uncorrobated testimony of the defendant.
We believe the proposed new evidence was merely cumulative and the fact that it would support the uncorroborated testimony of the defendant does not prevent the application of the rule. See
People
v.
Gray,
216 Mich. 509, where a new trial was denied because the claimed newly-discovered evidence was cumulative, and wherein such evidence was offered
in support of the uncorroborated testimony of the defendant.
In support of this proposition, defendant cites several eases from other jurisdictions, - which we have examined and found not to be controlling, including Sluman
v. Dolan,
24 S. D. 32 (123 N. W. 72), wherein the following statement is made:
“But we apprehend that the rule applicable to ordinary cumulative testimony on motions for a new trial on the ground of newly-discovered evidence is not applicable as applied to a case where a party to the action is the principal witness.”
However, a reading of that ease shows that it appeared that the alleged newly-discovered evidence would probably bring a different result upon a new trial, and such is the observation of the commentator in L. R. A. 1916C, 1198, who points out that a month later in
Ernster
v.
Christianson,
24 S. D. 103 (123 N. W. 711), wherein the only testimony given upon the trial in defense of the action was that of the defendant, the same court, in denying a motion for a new trial, said:
‘ ‘
The eyidence claimed to be- newly-discovered was simply cumulative, as the defendant himself had testified, and had been fully examined on the issue presented, and it seems to be a well-settled rule that a new trial will not be granted on the ground of newly-discovered evidence which is merely cumulative, and which only tends to corroborate the testimony already given at the trial.”
The granting of a new trial on this ground is discretionary with the trial court.
People
v.
Free access — add to your briefcase to read the full text and ask questions with AI
Chandler, C. J.
Defendant was convicted and sentenced for tbe crime of statutory rape, said offense having been charged in the information and established by the testimony of the complaining wit
ness as occurring on the evening of April 24, 1940, sometime between 6:45 and 8:30 o ’clock.
The defense was an alibi and among the alleged errors to be reviewed is tbe refusal of tbe trial court to grant a new trial on tbe ground of newly-discovered evidence.
Defendant was engaged in tbe sale of electrical appliances. He claimed that be bad never seen the complainant until March 15, 1941, tbe evening be was arrested, and that on tbe evening of April 24, 1940, be was at tbe home of some people to whom be bad sold an electric range discussing with them tbe operation thereof, and which appliance be bad installed in their borne on tbe previous day.
Tbe electric stove bad been sold to a Mr. and Mrs. John Tomaniea, who lived with tbe latter’s parents, Mr. and Mrs. Adrian J. Yan Boggelin. Attached to and in support of tbe motion for a new trial were tbe affidavits of defendant, Mrs. Yan Boggelin, Mr. and Mrs. Tomaniea and a Mr. and Mrs. Weaver, neighbors of tbe Yan Boggelins and tbe Tomanicas.
Tbe affidavit of defendant stated ’ that although be bad no record thereof be was certain that be was at tbe Yan Boggelin home between 7 and 8 o’clock p. m. on the evening of tbe alleged offense discussing tbe operation of the stove; that long before tbe trial be bad talked with Mrs. Van Boggelin and Mr. and Mrs. Tomaniea concerning bis case and that although they all remembered that be bad called and instructed them in tbe use of tbe stove, none of them could recall whether it was tbe evening of tbe day tbe stove was delivered or the evening of tbe following day; that bis wife talked with these people again about tbe same matter some two weeks before tbe trial but that they were still unable to fix tbe date; that be made every reasonable effort to obtain evidence as to bis claimed whereabouts at tbe time
of the alleged offense; that it was not until after the trial that he learned that Mr. and Mrs. Weaver, heretofore mentioned, had knowledge of facts which would fix his whereabouts at the time in question and that they would testify that they had seen him at the Van Boggelin and Tomanica home at that time.
The affidavit of Mrs. Van Boggelin sets forth that although she had not been able to recall previously the date when defendant had been at her home to discuss the operation of the electric stove, since the trial of the cause her recollection of the event had been refreshed by a conversation with her neighbor, Mrs. Weaver, and that she then knew that the instructions took place on the evening of the day following delivery of the appliance. This affiant also stated that she now recalled that on the evening of the day the stove was delivered, Mr. and Mrs. Weaver came over to see it and that it was not until the following evening that defendant came to the house.
The affidavits of Mr. and Mrs. Tomanica 'are similar to that of Mrs. Van Boggelin. They stated that since the trial of the case their memory had been refreshed by a conversation with the Weavers and that they now remembered that the stove was demonstrated by defendant on the evening following the installation thereof.
Mr. Weaver’s affidavit set forth that on the day the stove was delivered, he went to the Van Boggelin home with his wife and spent the evening; that on the following evening, shortly before dark, he saw the defendant drive by his house; and that later, when it had become somewhat darker and the lights in the house had been turned on, he looked out of the window and saw defendant in the Van Boggelin home talking to Mrs. Van Boggelin. The affidavit
further stated that he did not remember the date hut that he was certain he saw defendant' at the Yan Boggelin home the evening of the following day after delivery of the stove.
The affidavit of Mrs. Weaver stated that she and her husband spent the evening at the Yan Boggelin home the day the stove was delivered -and that after the trial Mrs. Yan Boggelin and Mrs. Tomanica had stated to her that defendant had been to their home either the day the stove was installed or the evening of the next day but they could not recall just when and that she then remembered and reminded them that on the day following the stove installation Mrs. Yan Boggelin had ashed her for instructions in the use of the stove.
Defendant had testified that his records showed that he had delivered the stove on April 23, 1940, and claims that a new trial should have been granted because the testimony of the affiants above mentioned would establish his whereabouts at the' time of the alleged offense.
The people claim there was no error in denying the motion for a new trial because the testimony, as appears from the affidavits, would be cumulative and that defendant did not use due diligence to discover the same. Defendant, while apparently conceding that the testimony of these people would be merely cumulative, claims that the rule does not apply where it is given in support of the uncorrobated testimony of the defendant.
We believe the proposed new evidence was merely cumulative and the fact that it would support the uncorroborated testimony of the defendant does not prevent the application of the rule. See
People
v.
Gray,
216 Mich. 509, where a new trial was denied because the claimed newly-discovered evidence was cumulative, and wherein such evidence was offered
in support of the uncorroborated testimony of the defendant.
In support of this proposition, defendant cites several eases from other jurisdictions, - which we have examined and found not to be controlling, including Sluman
v. Dolan,
24 S. D. 32 (123 N. W. 72), wherein the following statement is made:
“But we apprehend that the rule applicable to ordinary cumulative testimony on motions for a new trial on the ground of newly-discovered evidence is not applicable as applied to a case where a party to the action is the principal witness.”
However, a reading of that ease shows that it appeared that the alleged newly-discovered evidence would probably bring a different result upon a new trial, and such is the observation of the commentator in L. R. A. 1916C, 1198, who points out that a month later in
Ernster
v.
Christianson,
24 S. D. 103 (123 N. W. 711), wherein the only testimony given upon the trial in defense of the action was that of the defendant, the same court, in denying a motion for a new trial, said:
‘ ‘
The eyidence claimed to be- newly-discovered was simply cumulative, as the defendant himself had testified, and had been fully examined on the issue presented, and it seems to be a well-settled rule that a new trial will not be granted on the ground of newly-discovered evidence which is merely cumulative, and which only tends to corroborate the testimony already given at the trial.”
The granting of a new trial on this ground is discretionary with the trial court.
People
v.
Tucker,
222 Mich. 564;
People
v.
Prag,
261 Mich. 686;
People
v.
Serra,
301 Mich. 124. And after a careful examination of the affidavits in support of the motion we fail to find that there has been an abuse of judicial
discretion. We are not convinced from a reading of the statements that a different result would be reached upon retrial.
People
v.
Mangiapane,
219 Mich. 62. The statements of the affiants are not persuasive, as three of them state that they had their recollections refreshed by a conversation with the Weavers, and ¡the affidavits of the Weavers would not exclude the guilt of defendant when read in conjunction with the testimony taken upon the trial.
Furthermore, there appears a lack of diligence in securing the testimony.
People
v.
Hallman,
299 Mich. 657. Defendant-was arrested on March 15, 1941, and the trial was not held until the 22d and 23d days of the following September. All of the proffered witnesses were available during this interval and there is no showing that the testimony could not have been produced at the trial.
Defendant also claims there was error in not granting a new trial because the testimony of the witnesses for the prosecution was inconsistent, contradictory and because of the admitted untruthfulness of the prosecutrix.
A review of the claimed inconsistent testimony reveals that the conflicts, contradictions and admitted untruthfulness all concerned collateral matters. There was evidence from which the jury could properly find defendant guilty beyond a reasonable doubt, and the triers of the facts are the ones to pass upon the credibility of the witnesses.
The testimony showed that the prosecuting witness was born on April 11, 1925, and that she was thus 15 years of-age at the time of the alleged offense. Defendant, claims prejudicial error because the court several times in his charge to the jury stated that she was under 16 years of age and also asked questions during the trial concerning her age.
We have examined the charge as a whole and find no error in connection therewith, including the following portion of the charge which it is claimed was error because the complaining witness, although but 15 years of age, was five feet nine and one-half inches tall and that she could not be considered a child :
“Now, you are all men of experience, you understand the minds of children, and you are to weigh the testimony of any child in this case, in the light of such experiences of yours; the defendant has testified and you are to weigh his testimony as you would that of any other witness, taking into consideration, of course, his interest in the case.”
Judgment affirmed.
Boyles, North, Starr, Butzel, Bushnell, and Sharpe., JJ., concurred. Wiest, J., did not sit.