Appellants were convicted of illegally possessing a still. The sole error assigned is the overruling of their motion for new trial which motion relied upon the following causes:
1. Newly discovered evidence.
2. That the verdict is not sustained by sufficient evidence.
3. That the verdict is contrary to law.
The following summary of the evidence received upon the trial below will be sufficient for a complete consideration of the propositions relied upon for reversal:
Appellants lived in a two and one-half story house situated on the northeast corner of Centennial Avenue *Page 485 and Wolfe street, Muncie. Their two-car garage faced Wolfe 1. street which ran along the west side of their house. An old Ford coupe stood partly on Wolfe street and partly on appellants' premises between their house and garage. On the date of the alleged offense police officers made a search of appellants' premises. In the back part of the Ford they found the boiler of a still. The boiler was wet on the inside and smelled of whiskey. It had soot in three places on its bottom, indicating it had been over three burners. A can containing a mixture of yeast and rye, which smelled like mash, was found near a shed in the rear of the premises and there was an odor of mash throughout the house and basement. Behind the baseboard of a closet opening from the northwest room on the second floor of the house officers found a small boiler cap and two heavy white felt pads, strainers, which smelled of intoxicating liquor. Woman's dresses and shoes were in the northwest room and appellant Mae Rector went to that room later to change her dress before accompanying the officers. In a pantry adjoining the bathroom officers found about 20 empty sugar and rye flour sacks. The attic was sealed with celotex, contained a heating stove and had water piped to it from the bathroom below. A piece of hose, ten or fifteen feet long, was attached to a spigot or faucet on the water pipe. A 6 inch vent pipe, with an opening in it, passed through the attic. In the attic the officers found half a sack of rye flour, several pieces of copper tubing, a lard can containing water and rags, which smelled like mash, 3 pint bottles, a graduated glass or whiskey gauge. In the basement they found a 3-burner gasoline stove lying on its side and an air pump, about 200 barrel staves that were wet. Some were charred on the inside and covered with a white substance and *Page 486 some were broken. They also found some waste paper among which were some slips upon which were written the words malt, barrels, yeast, coal, hose, lard cans, gauge, sugar and gas. There were also sales slips for a saddle, hose, solder, gas elbow for stove, celotex and nails.
Appellants introduced evidence to the effect that the northwest room, in which the cap and felt strainers were found, had been occupied exclusively, for more than two weeks prior to the day before the search, by a roomer, Bob Marshall; that Marshall left on the day before the search and had not been heard from since; that the papers found in the basement were taken from his waste basket; that the attic had been used to repair aeroplane motors to which the copper tubing belonged; that the water and rags in the lard can had been used the day before to mop the attic; that the so-called whiskey gauge was a rose-bud vase; that the water was piped to the attic for fire protection; that the rye flour had been brought to the house a long time before from a grocery store previously operated by appellants; that the 20 flour and sugar sacks were intended for dish rags; that the barrel staves were from pickle barrels, were intended for kindling and that the appearance of the staves and the odor of the staves and basement, which was described by state's witnesses as whiskey mash odor, was due to the fact that the basement had been flooded for several days as a result of a stoppage of the drain tile. Appellants denied all connection with or knowledge of the boiler and produced several witnesses who testified, in substance, that they had been in various parts of the house and basement frequently before the date of the alleged offense and that they did not see or smell anything to indicate the presence of a still, mash or intoxicating liquor. *Page 487
We cannot resolve conflicts of evidence, and since we must consider only the evidence favorable to the State, we are forced to hold that the evidence was sufficient to sustain the verdict.
In support of their contention that a new trial should be granted for newly discovered evidence, appellants' motion was accompanied by the affidavit of one Ralph Miller. The 2-4. affidavit, insofar as it is material to this appeal, alleged in substance that he had moved from Muncie to Dayton, Ohio, shortly before the search involved; that he had no knowledge of the charge against appellants until after their trial and conviction; that on January 12th, two days before the date of the alleged offense, he was in Muncie and met Bob Marshall in a restaurant; that Marshall asked to borrow $10.00 and told Miller that he had a still which he would turn over as security; that Marshall took affiant to the old Ford on the Rector premises, removed from it a copper boiler and showed the boiler to Miller, telling him that he could supply the additional part required; that Marshall then replaced it in the Ford; also that Marshall asked Miller to not say anything to Mr. or Mrs. Rector about the still as he didn't want them to know about it. The affidavit also alleged facts showing that the affidavit was purely voluntary and unsolicited; that he had sent Mrs. Rector a letter by air mail on July 5th, detailing the above facts and had consulted an attorney on July 8th, before communicating with appellants' attorneys.
This court has frequently had before it the question of abuse of discretion of the trial court in refusing to grant a new trial on the ground of newly discovered evidence. The substance of the statements of this court upon that question is that the newly discovered evidence must be so convincing as to raise a "violent presumption *Page 488 that a different result would be reached upon a second trial" before we will overrule the judgment of the trial court. Cooper v. State (1889), 120 Ind. 377, 22 N.E. 320. The trial court should, of course, grant a new trial if it appears to him that it is probable that the newly discovered evidence would produce a different result in case of a new trial. But before we can say that a trial court has abused its discretion in the matter it must appear to us that the trial court could not reasonably have concluded that it was not probable that the newly discovered evidence would have such an effect.
Some of the evidence introduced by appellants during the trial was obviously for the purpose of raising the inference that Bob Marshall, a roomer at appellants' home, had possession of the still, if anyone did. The case, as made by the state's evidence, depended upon convincing the jury that the still had been dismantled a few hours before the search and that, at that time, the "boiler" had been placed in the automobile. The newly discovered evidence did not purport to account for the location of the "boiler" during the two days' period between Sunday and the time of the search late in the afternoon of the following Tuesday. At the most the newly discovered evidence was merely cumulative and, when considered in connection with the evidence given on the trial, we cannot say that the trial court abused its discretion in deciding that the newly discovered evidence was insufficient to justify the granting of a new trial.
Judgment affirmed.