— The defendant, having been convicted of an assault with intent to commit rape, appeals from the judgment and an order refusing him a new trial.
He does not complain of any ruling at the trial, nor does he deny that there is some evidence tending to prove the charge against him; but he contends that the testimony of the main witnesses against him is contradictory, and so improbable that they are not to be believed; that it furnishes proof of a conspiracy, and that the charge is a pure fabrication.
But it does not strike us in that way. The discrepancies in the statements of the children are not more than should be expected from their tender age. Then there is much" to corroborate their account. Indeed, the testimony of the defendant himself, carefully analyzed, affords many items strongly confirming their story. The statements as to the time when Cesena left the saloon constituted only conflicting testimony, and was properly left to the jury.
We do not attribute very much importance to the testimony as to time. It is easy to be mistaken in such matters. And then the value of the evidence depends largely upon the credibility of the witnesses,—a matter peculiarly for the jury.
The newly discovered evidence is all cumulative, or simply contradictory of the testimony of the people, and the counter-affidavits show that if the story be nota pure fabrication, the defendant must have known of it and of the witness. Counter-affidavits may be used on such motion to show that due diligence has not been used.
Such applications are addressed to the discretion of *384the trial court, and the presumption is, that the discretion was properly used.
We see no reason for interfering with the action of the court in this case, whether its decision were based upon lack of due diligence or a belief that the proposed evidence would not render a different result probable though a new trial were had.
We think the judgment and order should be affirmed.
Belcher, C., and Vanclief, C., concurred.
The Court.For the reasons given in the foregoing opinion, the judgment and order are affirmed.