The Waterbury Democrat., 1938-11-09
FRANK SALINARDI
LOSES APPEAL
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and newspapermen, contending that
arresting policemen had offered tes-
timony in common pleas court which
was contrary to testimony offered
in city court by the same police
men.
Judge Humans Statement
Concerning the filing of the petit
ton for new trial in the court of
common pleas, Justice Hinman
states in his memorandum: "At the
hearing the plaintiff sought first to
| introduce the testimony of the per-
sons whose evidence was set forth
in the affidavits which accompanied
the petition. To these proffers the
state objected on the ground that
the plaintiff should first show that
this evidence was not discovered or
discoverable by the exercise of due
diligence prior to or during the for
mer trial, and the trial court SO
ruled. Salinardi then rested without
attempting to prove that the evidence
he offered was newly discovered and
not discoverable with due diligence
in season for introduction on the
trial. The validity of this ruling is
the issue on the appeal"
1.-The statute under which this
action is brought includes the dis
covery of new evidence among the
causes for which new trials may be
granted. The petition must allege
and set forth the evidence produced
on the former trial, together with
the newly discovered evidence. The
ultimate purpose of this requirement
is that the court may determine
whether the new evidence is such
that is likely to reverse the result,
SO that, for lack of it, an injustice
has probably been DONE"
Proper Order of Proof
Continuing, the court held, "The
proper order of proof may well de-
pend upon the determinative issue.
From our earliest decisions the
order of proof has been made sub
ject to the exercise of liberal dis
erection of the trial court. The ex-
ercise of this discretion is parti-
cularly applicable in a matter such
as this where, upon the entire case,
the granting of a new trial rests SO
largely in the discretion of the court.
In the present instance the evidence
relied on and alleged to have been
newly discovered appears from the
affidavits to have concerned the
testimony given by a police officer
in the first trial of Salinardi in the
City Court of Waterbury. AS of
necessity the plaintiff was present
when that testimony was given in
quiry in the present proceeding as
to the prerequisite of due diligence,
before embarking upon q develop
ment of what testimony was and
its potential effect upon the result
would seem to have been definitely
indicated. We do not c0nstrue the
ruling as being to the effect that
it was obligatory upon the plain
tiff, as matter of law, to take the
course prescribed, but regard 1t as
made in contemplation and exercise
of the trial courts discretionary
power over the order of proof and
we cannot say that it was an abuse
of that discretion. If the plaintiff
had compiled with this reasonable
as to the order of proof
and could have satisfied the prim-
airy requisite Of diligence he could
and doubtless would have had OPP
portunity to demonstrate whether
his new evidence was such as to
warrant new trial"
The other Justices Of the supreme
court concurred to Justice Humans
opinion. Salinardi is represented by
Attorney John F. Tobin. Attorney
T. EIealey, Jr.. argued for
he state in the supreme court.
Prosecuting Attorney William j.
..arkin submitted a brief.