JONES v. STATE

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Docket Number

No. 40270.

Attorney(S)

W.W. Pierce, L. Percy Quinn, Jackson, for appellant. I. The Court erred in ruling that the Court was without jurisdiction to hear appellant's motion for a new trial upon the grounds of newly-discovered evidence. Carraway v. State, 167 Miss. 390, 148 So. 340; Roberts v. International Harvester Co., 181 Miss. 453, 179 So. 745, 180 So. 747; Fenelon v. State (Wis.), 218 N.W. 830; Allen v. Commonwealth, 114 Va. 826, 77 S.E. 66; Pleasants v. Allen Bros., 180 Okla. 518, 71 P.2d 114; Idaho Gold Dredging Co. v. Baise Payette Lbr. Co., 30 P.2d 1076; State v. Lee, 80 S.C. 367; 5 Mississippi Digest, Criminal Law, Key 938-946. II. The Court erred in ruling that appellant had not alleged or shown due diligence, this being a matter of proof to be shown by evidence at the hearing of and upon said motion. Barrentine v. State (Miss.), 51 So. 275; Buckner v. State, 81 Miss. 140, 32 So. 920; East v. State, 158 Miss. 622, 131 So. 97; Weathersby v. State, 95 Miss. 300, 48 So. 724; Cearly v. State, 97 Miss. 556, 52 So. 769; Carraway v. State, supra. III. The ruling and judgment of the Lower Court is in direct contravention of the Fourteenth Amendment to the Constitution of the United States. Hysler v. State of Florida, 85 L.Ed. 1518, 61 S.Ct. 1113. John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee. I. On February 28, 1956, appellant, by his attorney, filed a motion for new trial upon grounds of newly-discovered evidence in the Circuit Court of the First Judicial District of Hinds County, Mississippi. He set out in said motion that he was convicted in said Circuit Court at the November, 1952, term thereof, of the crime of grand larceny and was sentenced to serve five years in the State penitentiary. He states in said motion that he was convicted on the testimony of L.C. Lipscomb, who testified that he, Lipscomb, met appellant at the side of the Robert E. Lee Hotel and gave appellant some money, for which appellant agreed to return the same money back to him, plus $2.00 for each dollar he was handed by Lipscomb. Movant sets out in said motion that said case was appealed to this Court, where the judgment of the Lower Court was affirmed. He then appealed to the United States Supreme Court without success. The basis of appellant's present motion is that new evidence has come to his attention, said evidence being that one R.A. Shaw heard the conversation between Lipscomb and appellant at the Robert E. Lee Hotel on June 24, 1952, and that said witness is willing to testify that Lipscomb stated to appellant on that occasion "when I give you this money, I am expecting to get back three for one like they told me," and that Lipscomb did not state that he was expecting the same money back nor did appellant promise Lipscomb that he would return to him the same money which he was receiving. Attached to said motion is the affidavit of the said R.A. Shaw. In said motion appellant prayed that said Circuit Court "direct a hearing hereon and that upon said hearing the verdict of the jury and sentence rendered thereon at the former trial of this cause be set aside and this movant granted a new trial before a new jury in order that justice be done in the premises." II. Said motion of appellant was denied by said Circuit Court for the reason that said Court did not have jurisdiction of the case and further, even if it did have jurisdiction, appellant did not allege or show due diligence nor were matters and things alleged and proved that would entitle appellant to a new trial. III. By virtue of appellant's failure to comply with the terms of said Chapter 250, Mississippi Laws of 1952, the Trial Judge properly held that he was without jurisdiction to consider said motion. Wetzel v. State, 225 Miss. 450, 76 So.2d 194; National Cas. Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908; 39 Am. Jur., Sec. 182 pp. 184-85.

Judges

ARRINGTON, J.

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JONES v. STATE.

1. Criminal law — new trial — properly denied — newly discovered evidence.

Where the newly discovered evidence upon which defendant's motion for new trial was based did not appear to be such as would bring about a different result on a new trial, since it would merely tend to corroborate a witness for the State, the motion was properly denied.

Headnote as approved by Arrington, J.

ARRINGTON, J.

(Hn 1) We have carefully considered the motion for a new trial based on the ground of newly discovered evidence. Assuming the truth of the newly discovered evidence, we are of the opinion it would not bring about a different result on a new trial. In fact, the newly discovered evidence would tend to corroborate the State's witness Lipscomb as to obtaining the money which was the culmination of the criminal scheme. Redmond v. Marshall, 162 Miss. 359, 137 So. 733; Dement v. Summer, 175 Miss. 290, 165 So. 791; Black v. Stone County Lbr. Co., 216 Miss. 844, 65 So.2d 256; Suggestion of Error overruled, 216 Miss. 844, 65 So.2d 256; 39 Am. Jur., New Trial, p. 172, par. 165.

We are of the opinion that the circuit court correctly overruled the motion for a new trial.

Affirmed.

Roberds, P.J., and Hall, Kyle and Gillespie, JJ., concur.

JONES v. STATE.

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