State v. Bates

38 La. Ann. 491

Opinion

' The opinion of the Court was delivered by

Fenner, J.

The onty complaint of error is embodied in a bill of exceptions taken to the ruling of the judge in refusing a motion for new trial, which was based on the following grounds, viz:

1st. That no evidence was offered on the trial-to show any value to the property alleged to have been stolen.

Iiow are we to determine whether such evidence was offered or not, or the sufficiency of the evidence offered? The judge does not substantiate the averment, and Ms refusal of the new trial must be taken as denying it.

2d. That defendant was surprised by the State’s withdrawing a witness without examining him on a certain point.

This is frivolous. If the defendant wished to carry the examination further, he had the opportunity of doing so.

3d. On the ground of newly-discovered evidence, the amount of which is that he has discovered since the trial that he had been formerly tried and acquitted for the same offense.

The proposition that he had been tried and acquitted for the same offense, without knowing it, is difficult of comprehension; and, if it were true, should have been urged in a special plea of autrefois acquit.

4th. That the jury misapprehended the judge’s charge.

It is not alleged that the judge’s charge was incorrect or was not clearly expressed. The attempt is made to support the ground by the affidavit of one of the jurors; but he cannot be permitted to impeach the-verdict. We know of no authority for_ granting a new trial on such a ground.

Judgment affirmed.