The opinion
APPLICATION FOR REHEARING
Decided January 31, 1948.
By THE COURT:
Submitted on application of appellee for rehearing.
The first ground is that the affidavits of defendant Ross should not be accepted by this Court because they were secured by counsel for plaintiff without the knowledge of his, defendant’s, counsel. The infirmity of this position is that this information was not developed in the trial court and was not made the subject of any argument in this Court.
The second ground of the application is that we acted without cognizance and appreciation of the law controlling the granting of new trials on the ground of newly discovered evidence. This is misapprehension, as the Court realized that to justify the granting of a new trial on newly discovered evidence it must be such as would reasonably be expected to change the result and that this Court find that the trial judge in not so holding committed error. Our conclusion is that upon the vital question of the subject matter of the affidavits the verdict should reasonably be expected to be different than returned by the jury and carried into judgment by the trial court. Of course, we made the observation that in the last analysis, the credibility of the testimony of the defendant, if in accord with his affidavits, is with the jury. .
The first ground of the application is not made on the record; the second ground brings nothing new into the consideration of the errors assigned.
The application will be denied.
WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.