Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-08-30
PENoBscoT COUNTY CASE.
In Case Of LueIIa e. Drew versus Johi
M. Shannon, New Trial is Granted.


Penobscot County. Luella E. Drew
VS.. John NJ, Shannon. Rescript b!
King, ].
This is a complaint for bastardy
The verdict was for the plaintiff ant
the defendant brings the case to the
law court on exceptions to the exclu
sion of testimony, and on two motion
for new trial,-one because the yer
dict is against the weight of the evi
dence, the other based on the grount
of newly discovered evidence.
We find it is necessary only to con
slider the latter motion The PLAINTIFF
child was born November l, 1908; he
accusation against the defendant wa
made on oath before the magstrat
November 3. 1908.
1t is a condition precedent to tn,
maintenance of the plaintiffs sui
against the defendant that she SHOULD
prove at the trial that she remainec
constant in her accusation against hin
from the time it was made. She ties
titled that she had never said that tn
child belonged to anybody else an,
there was no evidence at the tria
tending to contradict her on that point
But the defendant alleges in this mo
ton, which is sufficient in form and al
legation that since the trial he has dis
covered witness, Mrs. Lillian GoulC
who will testify that after the plain
tiff had recovered from her. confine
ment she was at the house of the wit
ness to get some clothes for her infan
babe and told the witness that anothe
man, whose name she gave, was tn
father of her child and that she inten
ded to accuse such other man but he
father would not let her.
We think this testimony must be re
garded as newly discovered within tn
established rule in this state. l
could not be expected that the defen
dant or his counsel would discover b,
reasonable diligence witness to whom
the plaintiff had made such a persona
ana confidential statement. The i'm
portant question then is, ought tn,
court in the exercise of it's discretion
to grant a new trial in the case tina
the defendant may have an opportun
ity to present this newly discovered
evidence to a jury.
In the case of Parsons VS.. Railway
90 Me, page SOY, this court stated tn
true doctrine to be applied in deter
mining whether a new trial should b.
granted on, the ground of newly dis
covered evidence, tn be this: that be
fore the court will grant a new tria
upon this ground thesnewly discovere
testimony must be of such character
weight and value, considered in con
the case, that it seems to the cour
probable that on new trial with tn
additional evidence, the result would
he changed; or it must be made to ap
pear to the court that injustice is like
ly to be done il the new trial is re
fused"
An examination of the testimony O
Mrs. Gould, which accompanies tn,
motion, discloses no inherent improb
ability in her statement. She was al
acquaintance of the plaintiff. The,
had lived together in the same hous
for some time. At the time of the al
legged conversation Mrs. Gould wa
bcfriending the unfortunate plaintiff
by bestoWing upon her clothes for he
infant child. There is nothing in he
testimony to indicate that she has an
hostility to the plaintiff She say
| that she promised not to disclose wha
| the girl said 10 her. but in some wa
| the fact became known and she wa
| summoned as d witness.