The motion is for a rehearing on the ground of newly discovered evidence. The trial was had in December, 1928, on a petition filed in March of that year, charging adultery in 1921 with one Tony Franklin. The petition was dismissed. Tony and one Howard Mericle, who, it would seem, was also a co-respondent in the petition (described as "Joe" last name unknown), now make affidavits that they committed the acts of adultery charged against them in the petition, in the presence of Laura Poland, who testified at the hearing to circumstances tending to show the commission of the acts by them in quick succession on the same occasion. The petitioner came to the trial with scant testimony. Franklin was in court; the petitioner addressed him, but Franklin would not be interviewed, and the petitioner, not knowing how he would testify, did not call him. He wants the court now to accept Franklin's testimony which he himself was then afraid to offer. It is presumed that Franklin would have told the truth, as the petitioner now claims he is telling it. He declined to trust him and preferred to chance the verdict with the testimony he had, without Franklin; and by that he is bound. Franklin's testimony is not newly discovered evidence which could not be had at the trial with due diligence. If the petitioner believed the charge to be true, he knew that Franklin had the evidence. It is presently discovered that he would testify favorably, but that is not newly discovered evidence. Nor does it appear that the petitioner could not have had this information, with due diligence, from this witness so sympathetic now towards him as to be willing to testify to his own immorality. It is not shown that the petitioner did not know of the where abouts of Franklin and Mericle before the trial, nor that Mericle and Franklin would not have told him of their infamous conduct quite as willingly before the day of trial, if their story be true, as they now offer to tell.
The petitioner testifies that he had inquired diligently, and in vain, wherever he could hope to get proof of his wife's infidelity; that he had detectives on her track, c. If *Page 246 he and they could find nothing to incriminate the wife — this supposed strumpet, who is charged with taking on two men at one sitting, and in the presence of the other — it adds to our difficulty in believing the affidavits of the two wretches now brought in, and to our hesitancy in concluding that probably the verdict would have been different had their testimony been before us at the trial.
It is also in proof that Franklin denied the truth of the charge and was ready to so testify at the trial. How can we believe him now?
We are unwilling to accept the belated testimony as sufficient to move us to grant a new trial, and the motion for a rehearing is denied.