The majority opinion on rehearing in this case rests on the ground of newly discovered evidence, which was presented in a motion for new trial before the trial court, and there overruled, was presented and considered by this court on the original hearing, when the motion for a new trial was not considered of such import as to receive mention, and the judgment of conviction was affirmed. This newly discovered evidence is no rehearing declared to be competent evidence on a retrial of the defendant; that it is not merely cumulative and may have been sufficient, if admitted, to have generated in the minds of the jury a reasonable doubt of the defendant's guilt. With each of these three statements I find myself differing with my associates. Before, however, a consideration of these questions is entered upon, it may be well to restate the generally accepted rules, obtaining in many jurisdictions, as to the granting of a new trial on the ground of newly discovered evidence. These rules are fully set out and the authorities exhaustively collated in the case of Fries v. Acme White Lead Co., 201 Ala. 613, 79 So. 45, wherein these rules are stated as follows: (1) The newly discovered evidence must be such as could not, with reasonable diligence, have been discovered in time to be produced at the trial; (2) it must be such as to render probable a different result on the retrial of the case; (a) the newly discovered evidence must be material and competent to the issue of fact originally tried; (b) that it must be not merely impeaching evidence; (c) that it must not be merely cumulative.
The record discloses an absolute want of diligence on the part of the defendant to discover this newly discovered evidence. He was arrested on November 5, 1920, on the afternoon of which day he was told by his tenant, Mobley, that "he saw the said Snyder with a can like the can found at the still about two or three weeks before November 5, 1920, going somewhat in the direction of where the still was found." Not until after his trial at the October term, 1921, he says now, did he ever hear that Snyder was making rum at this still, or that he was claiming ownership *Page 678 of it, and then somebody told somebody else, who told his lawyer, who told him. He offers no evidence remotely tending to show diligence in following up the information given him by Mobley on the day of his arrest, nor does he even claim that he has been diligent, but is content to say that, even if he had tried, and had exercised reasonable diligence, he could not have found out his evidence before his trial. Who is Dennis Castleberry, the witness who did not unbosom himself until after the defendant's conviction? How far did he live from the defendant, and when did he first hear of the defendant's arrest charged with this offense? The record is silent. It was not on the state to show those things, but on the convicted defendant to bring himself within the law that required diligence on his part. When the law declares that the newly discovered evidence must be such as could not, with reasonable diligence, have been discovered in time to be produced at the trial, it means more than nonaction, it means affirmative action, alleged and proven. It does not mean, as is alleged in this case, if one had used reasonable diligence, that as a conclusion of his he could not have discovered such facts. He must produce such facts as will convince the court that he has been diligent and active. The action of the trial court in refusing to grant a motion for a new trial will not be reversed, unless error in such ruling is clearly shown, and, when the motion is based upon the ground of newly discovered evidence, it must be affirmatively shown that the failure of the movant to produce the newly discovered evidence on the trial of his case was not due to a lack of proper diligence on his part. Girardino v. B. So. R. R. Co., 179 Ala. 420, 60 So. 871; L. N. R. R. Co. v. Burke, 198 Ala. 99, 73 So. 416; Bellany v. State (Ala. Sup.) 93 So. 921. To grant the motion for a new trial in this case on such a showing, as to the defendant's reasonable diligence, is to set up a new precedent for the granting of new trials in this jurisdiction on this account.
Moreover, I cannot agree with the statement in the majority opinion that the newly discovered evidence was to the effect:
"That the witnesses testifying had been to the still about a week before the officers found it, and that it was in the possession, under the control, and was being operated by Snyder."
As I read the record, not the witnesses, but one witness, and only one, Dennis Castleberry, who admitted that he was convicted at the spring term of the Pike county circuit court for having liquor in his possession, testified that about a week before the defendant was arrested he went to the still one night, and found Snyder making rum.
It must not be overlooked that the defendant was acquitted under the count in the indictment which charged him with the manufacture of whisky, and that his conviction was for having a still in his possession on the 5th day of November, 1920, to be used for the purpose of manufacturing prohibited liquors. So that any newly discovered evidence that one Snyder was making whisky a week prior to this date would not be competent on a retrial of the defendant for having a still in his possession on November 5, 1920. Then would the newly discovered evidence be competent on a retrial of the defendant charged with having a still in his possession on November 5, 1920? Conceding that the statement, alleged to have been made by Snyder to Castleberry the day after the raid on the defendant, when he asked Castleberry if he had heard about the officers getting his (Snyder's) still, had reference to the still in question, this would not be competent evidence for the defendant in another trial of his case. 4 Mich. Dig. p. 148, § 219. If admissible, it would only tend to prove the ownership of Snyder, and not to disprove the possession of the defendant at the time the evidence tends to show he was in possession thereof. But it is stated in the second place in the majority opinion that this newly discovered evidence was not merely cumulative of testimony given on the trial of the defendant. Let us see. The defendant's testimony on the trial in the circuit court was that he was the owner of the land on which the still was found; that one Mobley, a tenant, was in possession of the particular ground where the still was found, and if (inferentially) he was not in possession, the said Snyder, who also was a tenant, was in possession of the land; that Snyder ran away shortly after the location of the still and the arrest of the defendant, and that he was still away; that both Mobley and the said Snyder lived much closer to the place where the still was found. The said Mobley, testifying for the defendant, said:
"He saw said Snyder with a can like the can found at the still about two or three weeks before November 5, 1920, going somewhat in the direction of where the still was found; that said Snyder is now out of the state; that he is gone."
So then, with all these facts before the jury which tried and convicted the defendant, would not the so-called newly discovered evidence be merely cumulative? But if not cumulative, it tends to impeach the testimony of the defendant himself, who stated, while being examined, that on the day of the location of the still, and the day of his arrest, together with the sheriff on the way to the still, they passed Snyder's house; that Snyder came to the window, and the sheriff said to him, "I want to show you a still; we think one of you has been running a still;" and Snyder replied, "I haven't been running a still." Hence it appears that when Snyder was here he spoke very different from the *Page 679 way we are now asked to believe he spoke to the witness Castleberry.
So that with evidence before the jury, which tends to show Snyder's guilt, the defendant was convicted, and how can it then be said that the result on a retrial would probably be different? The jury may have thought, and indeed some of the evidence tended to indicate that others had something to do with the manufacture of liquor at this still, and perhaps, of some one else being interested in the possession, for in addition to the evidence, indicative of the defendant's connection with the still, there was evidence of other tracks around the still place, and the fact, if it be a fact, that Snyder or others were interested, would in no wise absolve the defendant. Conceding that the newly discovered evidence tends to incriminate Snyder, it does not, however, tend to exclude the defendant from criminality.
In view of these facts, and the law applied to them, I can see no legal reason for reversing this case on the ground of newly discovered evidence. As is said in the Fries Case, supra:
"New evidence which merely tends to discredit an adverse party or his witnesses will not avail as a ground for a new trial, as such testimony may be discovered in almost every case, and there must be an end to litigation."
As I understand the record in this case, waiving the question of the defendant's diligence in ascertaining the newly discovered evidence, to grant the motion for a new trial on the ground of newly discovered evidence, it must be on the evidence of a self-admitted lawbreaker that a fugitive from the state of Alabama made a certain declaration to him, which he kept locked in his breast for one year, which declaration is incompetent as evidence, because it is hearsay and is cumulative of testimony given on the trial, and, if it is competent and no merely cumulative, it would not probably on another trial produce a different result. So believing, I think the application for rehearing should be overruled, and the judgment of the circuit court and this court remain undisturbed.