State v. Wynne

*421On Application for Rehearing.

PER CURIAM.

In the state’s application for a rehearing the Attorney General avers that, of the eight witnesses named in the defendant’s motion for a new trial, seven were subpoensed and six actually testified in the original trial of the case. That was not said by the district judge as a reason for overruling the motion for a new trial. In fact, he did not go into the merits of the motion. The state makes a sufficient showing, however, to warrant our granting the alternative relief asked for; that is, that the case be remanded to the district court to determine whether the alleged newly discovered witnesses were in fact newly discovered.

The rehearing is granted. The decree rendered on the 27th day of January, 1923, annulling the verdict appealed from and remanding this case for a new trial is itself annulled, and it is now ordered that the sentence be and it is, annulled, that this case be remanded to the district court for a trial and decision of the defendant’s motion for a new trial, on its merits, and particularly to determine whether the alleged newly discovered evidence was in fact newly discovered, and for further and final proceedings according to law.