State v. Albert

Citations

• 109 La. 201
• 33 So. 196
• 1902 La. LEXIS 136

Syllabus

<p>CRIMINAL LAW — NEW TRIAL — ABSENCE OE WITNESSES — NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.</p> <p>1.During the trial of a criminal case, on suggestion of the accused that, he had just discovered new witnesses, subpcenas were placed in the hands of the sheriff for service. They were not served, and the fact became known to the accused before his case was closed. It was his duty to have brought notice of the fact to the court, and asked for a temporary postponement to have service made. Having failed so to do, and permitted the case to go to the jury without opposition, he is not in position to claim a new trial in order to have the testimony of said witnesses taken.</p> <p>2. The court having ordered a hearing to be had upon the application of the defendant for a new trial, based upon the allegation of newly discovered evidence, it is his duty to cause those witnesses living in the immediate neighborhood to be present at the hearing, and subjected to examination and cross-examination. It is not the duty of the district attorney to summon them.</p> <p>3. Though it -be the rule that a new trial will not be granted in order to permit the introduction of evidence merely cumulative, the rule is not inflexible. The cumulative evidence, however, should be such as to impress the trial judge that, if added to the other evidence in the case, it would be likely to turn the scales in favor of the accused.</p> <p>(Syllabus by the Court.)</p>