People v. Merkle

De Haven, J. — The defendant, Margaret Merlde, was charged, by information, with the murder of one Joseph Von Wyl. Upon her trial, the jury returned a verdict finding her guilty of manslaughter, and she was thereupon sentenced to imprisonment in the state prison for the term of five years. From this judgment, and an order denying her motion for a new trial, she appeals.

The ground upon which appellant chiefly relies for a reversal of this judgment and order is her contention that the court erred in not granting her motion for a new trial on account of newly discovered evidence which she was not able to produce upon the trial. The nature of this evidence fully appears in the affidavits of herself and husband filed in support of her motion in the court below. The affidavit of the husband is, in substance, that he, and not the appellant, committed the homicide; that he told her of the fact that he had done this before the trial, but that he refused to allow her to use the communication in any way in her defense, and that the fact was not during the trial made known to the attorneys for appellant. This affidavit sets out in minute detail the circumstances under which the affiant claims that he inflicted upon Von Wyl the wound which resulted in his death. The affidavit of appellant is to the effect that before her trial her husband told her that he himself had cut Von Wyl, and then proceeds: “ I did not see him cut Von Wyl, and all I know about Von Wyl being cut is from what my husband then said to me, and he has never given me [84]permission to state,in court or otherwise, what he confided to me. 1 asked him if he did not think it would be best for me to state what he had told me about his cutting Von Wyl, and he replied, ‘No; do not state that which I told you; you are innocent of any crime, and they will not convict you.’ I know that the law cannot compel a wife to testify against her husband, except with his consent, except in cases of criminal violence upon one by the other. I knew that I was innocent, and I did not believe that I would be convicted, and never told any person what my husband had told me relative to his cutting Von Wyl, and I thought it was my duty not to say anything about it.” The husband was a witness upon the trial, and testified with particularity as to what he then claimed took place between himself, Von Wyl, the appellant, and others, immediately preceding the death of Von Wyl.

We do not consider the fact that appellant could not have produced upon her trial the evidence set out in the affidavit of her husband without his consent, and that such consent was refused, as one which would conclusively entitle her to a new trial. But undoubtedly it was the duty of the court below, in passing upon appellant’s motion, to give most careful consideration to these affidavits, and if, when weighedjin connection with the evidence given upon ¡the ¡trial, 'there would be in the mind of the judge a reasonable doubt as to the justice of the verdict, a new trial should have been granted. The supreme court of Mississippi in Cavaiiah v. State, 56 Miss. 310, in which case a new trial was asked upon the ground that a person incompetent to testify upon the trial had since been rendered competent, use this language, which we consider equally applicable here: “ We do not consider this as per se a ground for a new trial. It is to be considered. It is an important element, and may be entitled to much weight, as one cir