State v. Woodworth

Howell, J. The defendants have appealed from ■ a judgment sentencing them to imprisonment at hard labor in the State Penitentiary for the term of two years for the crime of “ breaking and entering. a ■store in the night time with the intent to steal,” and they assign several grounds of error, only one of which we can properly examine, to wit; the refusal of the judge a quo to grant a new trial upon an affidavit of newly-discovered evidence. The alleged new evidence was the testimony of one Mary Woodworth, who had been charged and tried with them and found not guilty in the same verdict, whereupon and and after judgment the affidavit was made. . ’ . *90 It docs not appear that a severance was asked for previous to the trial, nor that application was made before it was ended that a verdict of acquittal might be found as to her in order that she might testify in behalf of her co-dofendant, nor that the appellants became aware, after the trial, of the fact that the said witness could testify in their behalf. There was not, consequently, duo diligence, and the court did not err in refusing the new trial. ,T udgment affirmed. Rehearing refused.