, 1891-12-03
CR0SBY'S MURDER.
NEW EVIDENCE BY RESIDENTS OF
TUMWATER.
Stowe, the Convicted Murderer, is
Granted a New TFiaI-Encf-
dents I'm the Case.
Concluded from yesterday. |

lCOncIuded from yesterday.
An examination of the cases cited by re-
spondent shows that none Of them are in
point here. Baker VS.. Joseph, 16 Cal. 173,
was decided expressly on the ground that
the affidavit die not snow that the appli-
can't could, by due diligence, have obtained
the testimony at the former trial.
In Hobler VS.. Cole, 40 Cal. 250, after
stating the presumption that the discre-
ton has been properly exercised the court
refuses to disturb the ruling because it had
no knowledge of the case from the record.
The court says: HIn this cause there is
nothing before us but the affidavits and
the order of the court. The evidence is
not in the records and the pleadings have
not been sent up. We are uninformed as
to what evidence had been given at the
trial, or even as to what was the issue tried
between the parties. Certainly upon rec
ord SO barren as this one, we cannot be ex-
pected to disturb the decision arrived at
below" Such conclusion under the cir
cumstances Of that case seems to us to be
entirely Warrantable.
In People VS.. Sutton, 73 CAL, 243 it was
held that the affidavit uaed on the motion
failed to clearly show that the moving
party could not with reasonable diligence
have discovered and produced the evidence
claimed to be newly discovered on the
trial.
In Moran VS.. Abbey, 63 CAL, 56, all that
is decided is that the new trial will not be
granted on the ground as newly discovered
evidence, if the evidence might have been
produced at the trial by the exercise Of
reasonable diligence, and this rule was held
to be applicable to evidence Of conversa-
ton between plaintiff and one of defend
ants previous to the trial, the plaintiff be-
ing the moving party, and giving as a rea-
son for not producing the evidence that he
had forgotten the conversation. No other
proposition was discussed in this case.
In Hendy vs.. Desmond, g. Cal. 26O, the
court decided again the same proposition,
and decided nothing more. In that case
the court says:-"The affidavit discloses
but mere want of recollection" But an
entirely different state Of facts surrounds
this case. In the first place the affidavit
alleges diligence; and the circumstances of
the case bear out the allegation. Again
there are none of the suspicious circum-
stances which are sometimes apparent in
cases of this kind. There is no intimation,
or suspicion, that any improper influence
has been brought to bear upon these pro-
posed witnesses. The defendant was a
poor, ignorant obscure tramp tinker,
without money, or standing, or
friends, or even acquaintance; charged
with committing crime which aroused
the popular Indignation and horror of the
country. He was shut up in Jail, without
an opportunity to obtain testimony and
without means to EMPLOY counsel; and
he had to depend on the efforts of counsel
appointed to defend him The thirty wit
nesses proposed to be introduced here are
acknowledged on all sides to be respectable
citizens, above suspicion or reproach, and
the circumstances Of the case render it i'm
possible that they could have been
prompted to give this testimony in behalf
Of defendant by any other motive than a