People v. Singh

BURNETT, J.

Only two points are made by appellant in furtherance of his contention that the judgment and order denying his motion for a new trial should be reversed. The first relates to newly discovered evidence and the second to two instructions, requested by him and refused by the court.

[429]

The considerations to be observed in reviewing the action of the trial judge in declining to accord to the affidavits submitted by appellant the significance asserted for them are so familiar as hardly to need restatement. It is admitted that the general rule is as stated in

Tibbet

v.

Sue,

125 Cal. 548, [58 Pac. 160], that “The moving party must make a clear case, showing due diligence on his part and the truth and materiality of such evidence. Newly discovered evidence after defeat is looked upon with suspicion, and this court is always reluctant to

interfere

with the ruling of the trial court on a motion for a new trial on that ground, and will not do so unless there has been a clear abuse of discretion.” It cannot be said that in the case before us the court transcended the limits of judicial discretion. The evidence set out in the affidavits was, indeed, material and important and a

prima facie

showing of diligence was made by appellant, but by counter affidavits it was made to appear that the witnesses were, during the whole period, within a short distance of the city where the trial'was held, that defendant was at all times represented by counsel with whom he had frequent interviews, and while preparing for his trial was on different occasions visited by his countrymen who spoke his language, and, furthermore, that an interpreter was present to aid him in his communications with his counsel. It is stated in

People

v.

Freeman,

92 Cal. 367, [28 Pac. 261], that “The law requires at the hands of the defendant that he make careful and diligent preparation for his trial; and it is to be presumed more especially in a case of the importance- of this, that in preparing for a trial he should go over very carefully and diligently with his attorney every fact and circumstance which might in any way bear upon his defense.” Assuming that he and his attorney exercised the diligence which the law enjoins, it is altogether probable that inquiries would have been instituted leading to the discovery of the identity and location of those additional witnesses who claimed to be present at the scene of the alleged crime. Indeed, this vital question as to the eye-witnesses would immediately suggest itself, and, under the circumstances disclosed by the record, the court was entirely justified in concluding either that the defendant was inexcusably remiss in his preparation for the trial or else that he preferred to submit his case without the testimony of these