ROGERS, Justice.
Collie Saba, Israel Simmons, Cloyce Holloway, and Delmer Kennedy, young white men, were indicted for kidnapping Mary Brister, a young negro woman. The crime charged was “simple kidnapping” denounced by Article 45 of the Criminal Code. When the case was called for trial, Israel Simmons was overseas, serving in the armed forces, and could not be reached by legal process. The district attorney obtained a severance as to Collie Saba, whose trial was then proceeded with in pursuance to the assignment. The case against Holloway and Kennedy was continued and reassigned for the first day of the next term of court. The trial of Saba resulted in his conviction and sentence to the penitentiary for five years.
Relying on two bills of exception, Saba has appealed from his conviction and sentence. One bill was reserved to the overruling of a motion for a continuance, and the other bill was reserved to the overruling of a motion for a new trial.
The motion for a continuance was predicated upon the absence of Israel Simmons, an alleged material witness who was one of the parties indicted with Saba. On November 2, 1942, counsel for Saba requested that a summons issue for Simmons, directing him to appear as a witness at the trial of the case on November 13, 1942. The sheriff’s return shows that he was unable to
serve the summons for the reason that Simmons was then in the armed forces of the United States and had been sent overseas. The trial judge overruled the motion for the reason that the witness was beyond the jurisdiction of the court and that there was no assurance that he would in the near future, or even at any time, be amenable to the process of the court.
Article 322 of the Code of Criminal Procedure provides, among other requirements, that in order for defendant to obtain'a continuance, he must show in his motion, by facts and circumstances, the probability that the witness may be had at the time to which the trial is deferred. And Article 324 of the Code of Criminal Procedure forbids the trial judge to grant an indefinite continuance, and directs him, if he .grants the continuance, to fix the date upon which the trial shall be proceeded with, if practicable.
The attorneys for the defendant argue that the writers of the articles of the Code of Criminal Procedure did not contemplate the extraordinary conditions now prevailing as the result of the nation being engaged in a world-wide war. They argue that in view of these conditions, the provisions of Articles 322 and 324 of the Code of Criminal Procedure should not be stringently applied for the duration of the war. If their argument should prevail, it would mean that in many instances the criminal laws of this State could not be enforced until the end of the war. But their argument can not prevail. Aside from the uncertainty as to when Simmons may return to this country, if ever, the trial judge points out in his per curiam that inasmuch as Simmons is one of the parties jointly indicted with Saba, it is doubtful that he would consent to testify as a witness on Saba’s behalf. The judge further points out that Holloway, who was also one of the parties indicted with Saba, when called to the stand as a witness for the defendant, availed himself of his constitutional right to refuse to testify on the ground that he might incriminate himself. It appears that the attorneys for the defendant obtained a written statement from Simmons before he left the State, but it appears also that the attorneys for the defendant had obtained a similar statement in writing from PIolloway, who, when called to the stand, refused to testify. The trial judge, in overruling the motion for a continuance, took into consideration the doubt that Simmons would testify for Saba if he were present, in view of the fact that Holloway, who was present, refused to so testify.
Taking into consideration the uncertainty that Simmons would ever be available as a witness and the further uncertainty that he would testify for Saba, if he should become available, our conclusion is that the trial judge did not err in overruling defendant’s motion for a continuance.
The motion for a new trial was founded upon allegations of newly discovered evidence. This evidence is stated in the, motion to consist of the testimony, of J. L. Strahan and J. P. Mitchell, who are working in a defense plant located in or near Mobile, Alabama. Affidavits of the prospective witnesses are attached to the motion.
In discussing the motion and the ruling of the trial judge refusing to grant the defendant a new trial we shall confine ourselves to the record, disregarding the many-irrelevant statements of alleged facts contained in the briefs of counsel which form no part of the record.
The record shows that at about 5:30 o’clock in the morning of September 7, 1942, while in front of her home on Fifth A Street, in the City of Bogalusa, the young negro girl, Mary Brister, was forcibly seized, placed in an automobile, carried to a distance of some two miles beyond the city limits, and, as she testified, was criminally assaulted by four white men. These men were Collie Saba, the appellant, Cloyce Holloway, Israel Simmons, and Delmer Kennedy. They returned Mary Brister to a point approximately one block from her home about seven o’clock in the morning of the same day.
As shown by the per curiam of the trial judge, the affidavits of Strahan and Mitchell were apparently procured by Abraham Saba, a brother of the defendant, Collie Saba, who took an active interest in his defense and who was a co-worker with the affiants in the defense plant in Alabama.
The defendant submitted his motion for a new trial on the allegations of the motion, which were sworn to by him, and upon the affidavits of the two alleged newly discovered witnesses. He did not submit an affidavit by his brother Abraham Saba, and neither he nor Abraham Saba took the witness stand to support the allegations of his motion. The district attorney made no objection to the mode of procedure adopted by-defendant.
After the district judge had granted counsel for defendant a delay of one week within which to apply for a motion for a new trial, the motion was filed and, in pursuance of the previous assignment, a hearing was had thereon. On this phase of the case, the minutes of the district court show the following: “On motion of counsel for defendant, the court ordered that defendant’s motion for a new trial be filed herein. The matter of a new trial was then taken up, argued and presented to the court and the court overruled said motion for a new trial. To which ruling counsel for defense excepts, making the motion, ruling and affidavits contained in and filed with said motion the basis for a formal bill of exception to be later prepared and tendered the court for its signature.” The defendant was then sentenced in accordance with the verdict of the jury, and his motion for an appeal to this Court was granted.
The bill of exception is extremely brief. It sets forth defendant’s conviction, his application for a new trial before sentence, the ruling of the court thereon, and makes part of the bill the motion and attached affidavits as fully as if they were re-written in the bill.
The reasons influencing the trial judge-to deny the motion for a new trial are set forth in his per curiam which speaks for itself. We quote from the per curiam:
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ROGERS, Justice.
Collie Saba, Israel Simmons, Cloyce Holloway, and Delmer Kennedy, young white men, were indicted for kidnapping Mary Brister, a young negro woman. The crime charged was “simple kidnapping” denounced by Article 45 of the Criminal Code. When the case was called for trial, Israel Simmons was overseas, serving in the armed forces, and could not be reached by legal process. The district attorney obtained a severance as to Collie Saba, whose trial was then proceeded with in pursuance to the assignment. The case against Holloway and Kennedy was continued and reassigned for the first day of the next term of court. The trial of Saba resulted in his conviction and sentence to the penitentiary for five years.
Relying on two bills of exception, Saba has appealed from his conviction and sentence. One bill was reserved to the overruling of a motion for a continuance, and the other bill was reserved to the overruling of a motion for a new trial.
The motion for a continuance was predicated upon the absence of Israel Simmons, an alleged material witness who was one of the parties indicted with Saba. On November 2, 1942, counsel for Saba requested that a summons issue for Simmons, directing him to appear as a witness at the trial of the case on November 13, 1942. The sheriff’s return shows that he was unable to
serve the summons for the reason that Simmons was then in the armed forces of the United States and had been sent overseas. The trial judge overruled the motion for the reason that the witness was beyond the jurisdiction of the court and that there was no assurance that he would in the near future, or even at any time, be amenable to the process of the court.
Article 322 of the Code of Criminal Procedure provides, among other requirements, that in order for defendant to obtain'a continuance, he must show in his motion, by facts and circumstances, the probability that the witness may be had at the time to which the trial is deferred. And Article 324 of the Code of Criminal Procedure forbids the trial judge to grant an indefinite continuance, and directs him, if he .grants the continuance, to fix the date upon which the trial shall be proceeded with, if practicable.
The attorneys for the defendant argue that the writers of the articles of the Code of Criminal Procedure did not contemplate the extraordinary conditions now prevailing as the result of the nation being engaged in a world-wide war. They argue that in view of these conditions, the provisions of Articles 322 and 324 of the Code of Criminal Procedure should not be stringently applied for the duration of the war. If their argument should prevail, it would mean that in many instances the criminal laws of this State could not be enforced until the end of the war. But their argument can not prevail. Aside from the uncertainty as to when Simmons may return to this country, if ever, the trial judge points out in his per curiam that inasmuch as Simmons is one of the parties jointly indicted with Saba, it is doubtful that he would consent to testify as a witness on Saba’s behalf. The judge further points out that Holloway, who was also one of the parties indicted with Saba, when called to the stand as a witness for the defendant, availed himself of his constitutional right to refuse to testify on the ground that he might incriminate himself. It appears that the attorneys for the defendant obtained a written statement from Simmons before he left the State, but it appears also that the attorneys for the defendant had obtained a similar statement in writing from PIolloway, who, when called to the stand, refused to testify. The trial judge, in overruling the motion for a continuance, took into consideration the doubt that Simmons would testify for Saba if he were present, in view of the fact that Holloway, who was present, refused to so testify.
Taking into consideration the uncertainty that Simmons would ever be available as a witness and the further uncertainty that he would testify for Saba, if he should become available, our conclusion is that the trial judge did not err in overruling defendant’s motion for a continuance.
The motion for a new trial was founded upon allegations of newly discovered evidence. This evidence is stated in the, motion to consist of the testimony, of J. L. Strahan and J. P. Mitchell, who are working in a defense plant located in or near Mobile, Alabama. Affidavits of the prospective witnesses are attached to the motion.
In discussing the motion and the ruling of the trial judge refusing to grant the defendant a new trial we shall confine ourselves to the record, disregarding the many-irrelevant statements of alleged facts contained in the briefs of counsel which form no part of the record.
The record shows that at about 5:30 o’clock in the morning of September 7, 1942, while in front of her home on Fifth A Street, in the City of Bogalusa, the young negro girl, Mary Brister, was forcibly seized, placed in an automobile, carried to a distance of some two miles beyond the city limits, and, as she testified, was criminally assaulted by four white men. These men were Collie Saba, the appellant, Cloyce Holloway, Israel Simmons, and Delmer Kennedy. They returned Mary Brister to a point approximately one block from her home about seven o’clock in the morning of the same day.
As shown by the per curiam of the trial judge, the affidavits of Strahan and Mitchell were apparently procured by Abraham Saba, a brother of the defendant, Collie Saba, who took an active interest in his defense and who was a co-worker with the affiants in the defense plant in Alabama.
The defendant submitted his motion for a new trial on the allegations of the motion, which were sworn to by him, and upon the affidavits of the two alleged newly discovered witnesses. He did not submit an affidavit by his brother Abraham Saba, and neither he nor Abraham Saba took the witness stand to support the allegations of his motion. The district attorney made no objection to the mode of procedure adopted by-defendant.
After the district judge had granted counsel for defendant a delay of one week within which to apply for a motion for a new trial, the motion was filed and, in pursuance of the previous assignment, a hearing was had thereon. On this phase of the case, the minutes of the district court show the following: “On motion of counsel for defendant, the court ordered that defendant’s motion for a new trial be filed herein. The matter of a new trial was then taken up, argued and presented to the court and the court overruled said motion for a new trial. To which ruling counsel for defense excepts, making the motion, ruling and affidavits contained in and filed with said motion the basis for a formal bill of exception to be later prepared and tendered the court for its signature.” The defendant was then sentenced in accordance with the verdict of the jury, and his motion for an appeal to this Court was granted.
The bill of exception is extremely brief. It sets forth defendant’s conviction, his application for a new trial before sentence, the ruling of the court thereon, and makes part of the bill the motion and attached affidavits as fully as if they were re-written in the bill.
The reasons influencing the trial judge-to deny the motion for a new trial are set forth in his per curiam which speaks for itself. We quote from the per curiam:
“This Bill of Exception (Bill of Exception No. 2) was reserved to the overruling by the Court of defendant’s motion
for a new trial. The basis for the motion was that since the trial of the case and the verdict of the Jury, the defendant had discovered new and vital evidence which was material and admissible, and would, in defendant’s opinion, result in acquittal of the defendant at the hands of a Jury. The defendant sets forth that it was only since the trial of the case that he learned of the witnesses, and the evidence which they could and would give, and that he has been guilty of no laches in the premises, nor could he, by the exercise of any diligence have discovered these witnesses and this testimony before or during the trial of the case. It is further set forth that the evidence of these witnesses is not merely cumulative, and does not merely corroborate nor impeach the testimony of any other witnesses examined on the trial. There is annexed to the motion for a new trial the affidavits of the witnesses, J. L. Strahan and J. P. Mitchell, disclosing the facts that these witnesses allegedly know, and will testify to. The facts set forth in the affidavits are, substantially as follows: That on the morning of Labor Day, at about 5:30 A.M., these two witnesses were walking down Harper Street waiting for a ride back to Mobile, Alabama, where they were working, and that when they arrived at, or near the intersection of Harper and Fifth A Streets, they met a negro girl who asked them if they wanted to have a date with her, and they told her, ‘no;’ that soon thereafter they saw a car coming and this same negro girl walked out into the street and the car that was approaching stopped, and the defendant, Collie Saba got out and began talking with the negro girl, and that soon thereafter the negro girl got into the car without any assistance on the part of the defendant, and the defendant got in the car behind her, and they heard the door slam and the girl hollowed as though her foot, or hand, had been caught in the door of the car; that the door was then pulled to and the car slowly drove off and they did not hear another sound from anyone in the car, nor did they see the car anymore.
“Before commenting on any of the facts alleged in these affidavits, I want to point out that at the time of the hearing of the motion for a new trial, I noticed the affidavits were made in Washington County, State of Alabama. I knew that defendant’s brother, Abraham Saba, who took a very active interest in the defense of this case, worked in Mobile, Alabama, and Mobile, Alabama, is in Washington County. I further knew that Abraham Saba was a foreman in a Defense Plant, and had several men working under him. So, consequently, when I read the affidavits, knowing these facts, I asked the question if these men who signed the affidavits worked for Abraham Saba. One of the defendant’s relatives, who was in Court at the time, said that these witnesses did not work for Abraham Saba, but that they worked with him. The crime was allegedly committed on Monday, September 7th, 1942, and the trial of the case was not had until Friday, November 13th, 1942, or a period of more than two (2) months after the crime was alleged to have, been committed. Consequently, knowing the interest which Abraham Saba had in his brother, and the fact that these men worked with him for
a period of more than two (2) months after the crime was alleged to have been committed, it seemed unreasonable to me that Abraham Saba would not have ascertained what these witnesses knew prior to the time of the trial, had he used reasonable diligence to discover the existence of the testimony. It is even more strange that he obtained the facts set forth in the affidavits between November 13th, the date of the trial, and November 20th, the date of the application for a new trial. I am, of course, assuming that Abraham Saba obtained these affidavits for the reason that during said period of time his brother, the defendant, was in jail, and Abraham Saba worked in Mobile, Alabama, with the two witnesses who made the affidavits. The affidavits set forth that the two witnesses met this negro girl, who subsequently got into the car with the defendant, and that the said negro girl asked them if they did not want to have a date with her and that they told her, ‘No.’ This negro girl, who was the complaining witness, impressed me as being anything but forward. I considered it highly unlikely that a negro woman would accost two white men on a public street in Bogalusa, and particularly is this true as to the complaining witness, whom I considered to be a very reticent and shy person. I further note that the affidavit set forth that the negro girl got into the defendant’s car without any assistance on his part, and that he got into the car behind her, and when the door of the car slammed the girl hollowed as though her foot, or hand, had been caught in the door of the car, and that the door was then pulled to and the car slowly drove off. The negro girl testified at the time of the trial that when the defendant and the three (3) codefendants accosted her they told her they were ‘the law’ and to get in the car, and that when she refused the defendant seized her and attempted to throw her into the back seat; that due to the fact the car was ,a tudor sedan, it was impossible for the defendant to throw her all the way into the car and her legs partially stuck out over the running board, and the defendant slammed the door on them. She further testified that when the defendant told her ‘they were the law’ that she hollowed out to her mother, ‘the law had her.’ The mother testified that as soon as she heard her daughter scream out, ‘the law had her,' and the car drove hastily away, she got in touch with Police Headquarters and found out her daughter had not been arrested. The Police Officers went to the scene where the girl had been picked up in the car, and their testimony relative to the examination of the gravel street and the pavement immediately adjacent thereto, showed from the skid marks of the automobile that it had left the scene at a high rate of speed. All of this testimony caused me to seriously doubt the facts alleged in the affidavits.
“I further note that in connection with the motion for a new trial the defendant alleges that the verdict returned is contrary to the law and the evidence. I do not consider it necessary to comment on this phase of the motion for a new trial for the reason I am of the opinion that the verdict of the Jury in this case was proper.”
The burden is on the person convicted of the crime charged to rebut the "presumption that the verdict of the jury was- correct and that there has not been a lack of due diligence, and to establish other facts essential to warrant the grant-, ing of a new trial on the ground of newly discovered evidence. In order to meet the prerequisite of due diligence, defendant, in his motion for a new trial, merely sets forth in general terms the essentials prescribed for that purpose by Article 511 of the Code of Criminal Procedure. The article reads in part: “To entitle the accused to a new trial on the ground of newly discovered evidence, it must
affirmatively
appear that notwithstanding the exercise of reasonable diligence, the evidence was not known before or during the trial, but has been discovered since; * * (Writer’s italics).
The pertinent allegation in the motion for a new trial is in these words: “Your mover shows that it was only since the trial of this case that he learned of the witnesses above named (J. L. Strahan and J. P. Mitchell) and of the evidence which they could and would give and that he has been guilty of no laches in the premises nor could he by the exercise of any diligence have discovered these witnesses and this testimony before or during the trial of the case.”
It will be noted that defendant’s motion for a new trial does not give the date or specify the exact time when the alleged newly discovered evidence came to his knowledge or from whom, where and how he received the information regarding the alleged newly discovered witnesses, and the character of the testimony they proposed to give in the event he was successful in obtaining a new trial. The particular circumstances of the discovery of the alleged new witnesses and additional evidence is nowhere set out in defendant’s motion.
The law is clear with reference to a motion for a new trial that the proposed evidence must not only be newly discovered, but it must be shown that it could not have been discovered by the use of reasonable diligence before the verdict. State v. Raney, 181 La. 638, 160 So. 124; State v. Gray, 192 La., 1081, 190 So. 224.
In order to comply with the statutory requirement of due diligence with respect to alleged newly discovered evidence, it is not sufficient to merely incorporate the words of the statute in the motion for a new trial. There is something else required than the mere statement that the accused did not know of the existence of this alleged newly discovered testimony in time to have it brought forward. It must affirmatively appear that he could not have ascertained it by reasonable diligence. State v. Williams, 38 La.Ann. 361; State v. Johnson, 170 La. 1050, 129 So. 633.
The particular circumstances of the "discovery of the evidence must be affirmatively shown in order that the court may be in a position to determine the question of diligence from the facts set forth in the motion and affidavit of the mover. Defendant’s motion for a new trial is wholly lacking in that respect.
The crime for which Saba was tried V.nd convicted was committed on September 7, 1942; the indictment was returned on October 6, 1942; and the case was called for trial on November 13, 1942. Therefore, a period of more than two months elapsed between the commission of the crime and trial of Saba. It is certain that a crime of the character of the one committed by Saba received wide publicity and was the subject of general discussion in a community as small as Bogalusa. According to the affidavits submitted in support of the motion for a new trial, Strahan and Mitchell, who worked in a defense plant in the City of Mobile, were residents of Bogálusa which they visited at weekly intervals. Abraham Saba, the brother of Collie Saba, was a foreman in the plant in which the affiants worked. It is incredible that the affiants should have retained, locked in their bosoms for •over two months, information which, if true, would have materially assisted in the defense of Collie Saba, the brother of Abraham Saba, with whom they worked. The affiants assigned no reasons in their affidavits why they failed to divulge the important secret held by them until the day before the defendant was to be sentenced. The trial judge points this" out in his per curiam, from which we again quote:
“The crime was allegedly committed on Monday, September 7th, 1942, and the trial of the case was not had until Friday, November 13th, 1942, or a period of more than two (2) months after the crime was alleged to have been committed. Consequently, knowing the interest which Abraham Saba had in his brother, and the fact that these men (the affiants) worked with him for a period of more than two (2) months after the crime was alleged to have been committed, it seemed unreasonable to me that Abraham Saba would not have ascertained what these witnesses knew prior to the time of the trial, had he used reasonable diligence to discover the existence of the testimony. It is even more strange that he obtained the facts set forth in the affidavits between November 13th, the date of the trial, and November 20th, the date of the application for a new trial. I am, of course, assuming that Abraham Saba obtained these affidavits for the reason that during said period of-time his brother, the defendant, was in jail, and Abraham Saba worked in Mobile, Alabama, with the two witnesses who made the affidavits.”
Both Strahan and Mitchell state in their affidavits that, when the automobile stopped a man got out whom they recognized to be Collie Saba. Mitchell goes so far as to state that he and Strahan were about twenty-five feet away from the car when it stopped. If the affiants were able to recognize Saba, there is no reason why Saba could not have recognized them. If that were so, and the affidavits do not show that it was not so, by no stretch of the imagination can their statements be considered as newly discovered evidence.
In his per curiam, the trial judge sets forth substantially the contents of the affidavits made by Strahan and Mitchell. The venue of the affidavits, as shown by their captions and attached jurats, was in
Washington County, Alabama. A reference to any large scale map of the State of Alabama will show that Washington County lies north of and adjacent to Mobile County in which the City of Mobile, where the affiants and Abraham Saba worked, is situated.
It was suggested in the discussion of this case by the members of the Court that it can not be doubted that if the facts sworn to by Strahan and Mitchell in their affidavits are the true facts of the case, the defendant, Collie Saba, did not commit the crime for which he was convicted. This suggestion was met by the counter-suggestion that it can not be doubted that if the facts sworn to in open court by the witnesses for the prosecution on the trial of the case are the true .facts, the defendant, Collie Saba, did commit the crime for which he was indicted, tried and convicted.
In weighing the probable truth of the statements contained in the affidavits of the proposed new witnesses as against the probable truth of the sworn testimony given by the witnesses for the prosecution, the temptation of the defendant, his relatives and his friends to obtain a rehearing after the adverse verdict and the facility with which affidavits for that purpose can be obtained, must be kept in mind. The affidavits signed by Strahan and Mitchell exhibit all the internal evidence of having been prepared and presented to them for their signatures by the same person and to meet the occasion. They were signed and sworn to in the State of Alabama, beyond the jurisdiction of the district court for the Parish of Washington, in the State of Louisiana. The testimony of the witnesses for the State, which it is sought to contradict by the statements contained in the affidavits, was given in open court in the presence of the jury and the judge, subject to the cross-examination of the able counsel who represented the defendant and the denial of Saba himself who, as shown by the minutes, took the stand as a witness in his own behalf.
It is fundamental that applications for new trials in criminal cases on the ground of newly discovered evidence are not favored. They should not be lightly granted. It has been frequently pointed opt in the decisions of this Court that such applications must be received with great caution, the inducement to false swearing being great. It has also been frequently pointed out in the decisions that the granting or refusing of a motion for a new trial rests within the discretion of the trial judge. A dispute as to the weight to be attached to the statements which are contained in affidavits filed in support of the motion must be determined primarily with a view to this discretion.
The discretion vested in the trial judge in passing on a motion for a new trial based on the ground of newly discovered evidence in a criminal case is to be exercised in determining the diligence shown, the truth of the matters stated, and the materiality and probability of their effect, if they are believed to be true. The -presumption is that the trial judge in ruling upon the motion for a new trial properly exercised his discretion and his ruling denying the motion will
not be disturbed by the appellate court unless the discretion is arbitrarily abused.
The rule has been firmly established by numerous decisions of this Court in criminal cases that on the héaring of a motion for a new trial based on newly discovered evidence, the trial judge is justified in disbelieving the testimony of the alleged newly discovered witnesses, where such testimony is suspicious and incredible, and in refusing a new trial on that ground. When this clearly appears from the record, this Court will not interfere with the ruling.
Thus, in State v. Barton, 178 La. 859, 152 So. 546, 549, it was held that where the application for a new trial is made upon the ground of newly discovered evidence, the denial of the motion will not be interfered with, even though the judge bases his ruling on his refusal to believe the affidavit of the alleged newly discovered witness, unless it clearly appears that the judge exercised his discretion in an arbitrary or unjust manner. The Court quoted from State v. Williams, 38 La.Ann. 361, one of the cases cited in the opinion as follows: “The greatest, reliance is placed on the trial judges in refusing new trials in criminal causes, and it would be an unwise restriction to hold that they shall not take into account their belief that false-swearing has been resorted' to in order to break a conviction and obtain a new trial.”
In State v. Hill, 135 La. 625, 65 So. 763, where the convicted ■ defendant’s motion for a new trial on the ground of newly discovered evidence was supported by the affidavits of three alleged newly discovered witnesses, this Court, upholding the refusal of the motion for a new trial, held that the trial judge may, in his discretion, take into account his belief that false swearing has been resorted to by a convicted defendant in an effort to set aside the verdict and obtain a new trial.
In State v. Gardner, 157 La. 116, 102 So. 89, this Court declared that the trial judge was justified in disbelieving the testimony of the alleged newly discovered witnesses where such testimony was suspicious and incredible.
In the present case, the testimony it is claimed the alleged newly discovered witnesses would give on a new trial of the case is both suspicious and incredible and the judge, in refusing the motion for a new trial, did not abuse the discretion vested in him by law.
In his motion the defendant, Collie Saba, alleges that Strahan and Mitchell, the proposed witnesses, are residents of the City of Bogalusa, where the crime was committed, and that they are white men with good reputations. The fact that the proposed witnesses are white men adds nothing to the strength of defendant’s^ motion. It is the truthfulness of the proposed witnesses and not their color that should concern the Court. The defendant announced his conclusion that the proposed witnesses bear good reputations, but he does not set forth the particulars on which. he bases his conclusion. He also announces that the proposed witnesses are residents of Bogalusa, but he does not show where or with whom they reside in
that City. The motion is barren of any recital of facts by which the reputations or the residences of the proposed witnesses may be determined by the Court.
An examination of the affidavits shows that while they vary slightly in language, they are strikingly similar in substance. Neither affiant gives any satisfactory information concerning himself. Both state that they are working in Mobile, but they do not state for whom they are working, or the nature of their work. They do not show when they acquired knowledge of the prosecution or conviction of Saba, nor from whom they obtained the knowledge. They do not show when and to whom they gave the information set forth in the affidavits, nor do they set forth the name of the party or parties who procured the affidavits from them.
Both affiants state that they were walking down Harper Street in Bogalusa, at about 5:30 o’clock in the morning, tin Labor Day, which was September 7th, whem they were accosted by a negro girl who asked them for a date which they refused. They state that thereafter they saw a car coming along and that the negro girl walked out into the streét and the car stopped; that they recognized Saba who got out of the car and started talking to the girl, and that she then voluntarily entered the car with Saba, that they heard the door slam and the girl holler “as though she had her foot or hand caught in the door;” -that the door was then pulled shut and the car slowly drove off, and that they did not see them any more.
The similarity of the statements is highly significant. The statément in Strahan’s affidavit reads as- follows: “He, Collie Saba, started talking with the negro girl and soon afterwards the negro girl got in the car without any assistance on the part of Collie Saba, and then Collie Saba got in the car behind her and we heard the door slam and the girl hollowed as though she had her foot or hand caught in the door of the car, and the door was then pulled to and the car slowly drove off and we didn’t hear any other sound from anyone in the car. We did not see them any more.”
The statement in Mitchell’s affidavit reads as follows: “In just a few seconds we saw a car coming and she was out in the street, and the car stopped about 25 feet from us, and a man got out of this car and we knew it was Collie Saba, and he had a conversation with the same negro girl that asked us for a date and she got in the car with said Saba and as they got in the car the door slammed and she hollowed as though her foot or hand had been caught and hurt, and then the door was closed and there was no further or other sound. The car drove slowly away and we saw them all in the car. Collie Saba did not assist the girl into the car, nor was he holding hey when they drove by us. We didn’t see them any more and went on our way to catch our ride back to our work in Mobile.”
Both affiants swore that the door of the car was slammed and that “she (the negro girl) hollowed as though her foot or hand had been caught or hurt,” and then the door was closed and the car drove slowly off.
How affiants were able to agree with such unanimity that the girl hollered “as though her foot or hand had been caught in the door” can not be explained on any other hypothesis than that they were given that information by some person or persons interested in the case. They certainly could not have indulged in the thought that the girl hollered “as though her foot or hand had been caught in the door of the car” from their own knowledge.
As a matter of fact, it is difficult to understand how Strahan could have thought that the foot and hand of the negro girl got caught in the door when it slammed. He states in his affidavit that “the
negro
girl got in the car without any assistance on the part of Collie Saba, and then Collie Saba got in the car behind her and we heard the door slam, etc.” If the girl preceded Saba into the car and the door of the car was slammed by Saba who followed her into the vehicle, it is clear that the girl must have been in the car when the door was slammed.
If Strahan’s statement is true, it would have been impossible for the foot and hand of the negro girl to get caught in the door of the car and hence there is no reason why he should have thought that such an occurrence took place. The same observation also applies to the statement of Mitchell to the effect that after Saba had a conversation with the negro girl, “she got in the car with said Saba and as they got in the car the door slammed and she hollowed, etc.” If Mitchell’s statement is true, it is certain that the girl did not get into the car after Saba. If she got intp the car before Saba, or they both got into the car together, as the statement of that witness seems to imply, it is difficult to understand how the foot and hand of the negro girl got caught in the door of the car. Hence, there was no more reason for Mitchell than there was for Strahan to think that such an occurrence took place. Nevertheless, such an occurrence did take place because, as was testified to by the negro girl, when she refused to get into the car, Collie Saba seized her and attempted to throw her into the back seat; that due to the fact that the car was a tudor sedan, it was impossible for Saba to throw her all the way into the car and her legs partially stuck out over the running board and the defendant slammed the door on them.
Both affiants state that the car drove slowly off, while the evidence of the police officers given on the trial of the case, and the physical facts prove, that the car drove rapidly off. It must be remembered that the negro girl was seized by Saba and his three companions in front of her own home, where she resided with her parents. When she was seized and thrown into the car, she cried out to her mother, who was in their home, that the “law had her,” as she was told by her assailants.
Again referring to the affidavits of the proposed new witnesses, it will be noted that Strahan stated he was working in Mobile. He did not state that he was a resident of Bogalusa, nor how he happened to be in that City on September 7th, the day the crime was committed. Mitchell says in his affidavit they were in Bogalusa, “our home, on a visit, and we were on our
way back to Mobile on our job.” But he does not give the location of their alleged homes, nor with whom he or Strahan lived in those homes.
It will be further noted that Strahan states in his affidavit that the reason he and Mitchell were walking down Harper Street in Bogalusa “was that the man that was supposed to look us up hadn’t arrived and I had a friend down the way, who (we) were going to try to get to bring us to Mobile.” But he does not mention the name of the man who was supposed to pick up Mitchell and him, nor does he mention the name or the location of.the “friend down the way” whom they were “going to try to get to bring them to Mobile.” The affidavit of Mitchell is likewise barren of any information on these matters. While he states that after he had witnessed the episode of the negro girl and Saba, he and Strahan went on their way to catch a ride back to Mobile, he does not say where they went to catch the ride, nor does he give the name of the person who was to furnish the transportation.
The story set forth in the affidavits of the proposed new witnesses is both suspicious and incredible. It is too fantastic to induce the belief that the principal witnesses for the State had deliberately perjured themselves in testifying against the defendant Saba on the trial of the case.
The trial judge, as shown by his per curiam, satisfied himself that the statements set forth in the motion for a new trial and in the attached affidavits were untrustworthy and suspicious. The trial judge, who is characterized in the brief of counsel for defendant as “an able and honest jurist,” had the opportunity of following this case from its inception, to and including his refusing defendant a new trial. He saw and heard the witnesses, including defendant himself, and was familiar with all the surrounding circumstances. The trial judge was in a position to know of many circumstances, which of necessity do not appear in the record but which may have an important bearing upon the question of whether in the interest of justice to the defendant, on the one hand, or in the interest of a proper administration of the law, on the other, a new trial based on newly discovered evidence should or should not be granted. As to these circumstances this Court is not in a position to have information. After fully considering the allegations of defendant’s application for a new trial and the statements contained in its supporting affidavits, the trial judge reached and announced his conclusion that defendant was guilty of the crime with which he was charged. We quote the following language from the per curiam of the trial judge: “I further note that
in connection with the motion for a new trial
the defendant alleges that the verdict returned is contrary .to the law and the evidence. I do not consider it necessary to comment on this phase of the motion for * new trial for the reason that I am of the opinion that the verdict of the Jury in this case was proper.” (Writer’s italics.)
No injustice has been done the defendant in this case. He was prosecuted by a fair district attorney and convicted by an honest jury after a trial presided over by an impartial judge. Not one bill of ex
ception was reserved to any act or remark of the district attorney during the course of the trial, to the conduct of the jury, or to any ruling of the trial judge. Defendant’s only complaints are directed at the refusal of the trial judge to grant his motions for a continuance and for a new trial. The reasons for his refusal of the motions are fully and convincingly set forth by the trial judge in his per curiam attached to the bills.
We therefore can not hold that the trial judge erred in overruling defendant’s motion for a new trial.
■ For the reasons assigned, the conviction and sentence appealed from are affirmed.