Opinion
No. 3931.
Decided July 6, 1950.
Argument commenting on the opposing party's failure to call available material witnesses was justified where the witnesses were apparently accessible. Where the facts contained in affidavits offered in support of a motion for a new trial did not compel the finding that a different result would have been reached the denial of the motion was warranted.
BASTARDY proceedings under R. L., c. 128, s. 1. Trial by jury resulting in a verdict of chargeable. The defendant excepted to certain evidence, to portions of the plaintiff's argument to the jury and to parts of the charge. After the trial the defendant excepted to the Court's refusal to set aside the verdict and to the denial of his motion for a new trial on the ground of newly discovered evidence.
During the trial it appeared first from questions by defendant's counsel that two young men by the names of Houey and Langton were at the camp on Crystal Lake where the plaintiff claimed the defendant took her the night the offense occurred. Thereafter throughout the proceedings their names appeared frequently. It was brought out that Langton was known to witnesses at the trial, and that his home was in Manchester one street away from the home of the wife of the defendant, who had married after the alleged commission of the offense. It also appeared that Houey was a friend of the defendant and other persons who testified at the trial, had rented a cottage at Crystal Lake and had worked in Manchester. Neither side produced these men or accounted in any way for their absence. The defendant argued that he could not be blamed for not producing them because the plaintiff could have done so and the fact she did not was because the defendant "Paul was never there." The plaintiff without objection argued that the defendant's failure to produce these "available" men was because they would have been no help to him. Later he repeated this argument, withdrew it upon objection and submitted to the Court's instruction to the jury to strike it from their minds. Still later he again repeated the argument and this time the defendant excepted on the grounds that "there is no evidence of their availability."
After the trial the defendant moved for a new trial on the ground of newly discovered evidence and filed two affidavits in support. One of these, by Houey, alleged that he was a resident of Manchester at the time of the trial and was then working around Tilton and Franklin. The other by the Langton boy's father, a resident of Manchester, alleged that his son was in Germany at the time of the trial. Transferred by Grimes, J. Other facts appear in the opinion.
Maurice A. Broderick (by brief and orally), for the plaintiff.
Chretien and Craig and John W. King (Mr. King orally), for the defendant.
The plaintiff's argument regarding the defendant's failure to present the witnesses Houey and Langton was proper since the record shows both were seemingly accessible and the defendant's exception to it is overruled. Brito v. Company, 79 N.H. 163, 164; Beardsell v. Tilton School, 89 N.H. 459, 463.
The affidavits filed in support of the motion for a new trial do not indicate the nature of the testimony of the missing witnesses or that it would help the defendant. They do furnish evidence that the witness Houey could have been produced and the absence of Langton accounted for by the defendant. Had the facts set forth in the affidavits appeared at the trial it cannot be said as a matter of law that a different result would have been reached. The Court's denial of the motion for a new trial was warranted. No other exceptions being briefed or argued and none sustainable appearing in the record the order is
Judgment on the verdict.
All concurred.