# Newberry v. State > Supreme Court of Arkansas · December 12, 1977 · 262 Ark. 334 URL: https://www.frixlaw.com/law-library/cases/9675457 ## Case - **Full name:** Ula T. NEWBERRY v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** December 12, 1977 - **Citations:** 262 Ark. 334; 557 S.W.2d 864; 1977 Ark. LEXIS 1806 - **Precedential status:** Published - **Opinion:** On rehearing by Fogleman - **Judges:** Fooeeman, Fogleman, Harris, Holt, Roy, Byrd, Howard - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9675457 ## Opinion text Supplemental Opinion on Denial of Rehearing delivered December 12, 1977 John A. Fogleman, Justice. On petition for rehearing, appellant points out that he did argue in his original brief that it was a grave abuse of discretion for the trial court to refuse to allow David Dale Ladd, who was present at the hearing on the motion for new trial and allegedly wanting to recant his testimony at the trial, to testify before the motion was denied. We erroneously stated that appellant belatedly complained of this in his reply brief. We might well have disposed of this contention on the basis that assignments of error unsupported by convincing argument or authority, will not be considered unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857 , 545 S.W. 2d 606 ; Hazen v. City of Booneville, 260 Ark. 871 , 545 S.W. 2d 614 ; Arnold v. Arnold, 261 Ark. 734 , 553 S.W. 2d 251 . We preferred, however, to pass upon the question raised. We still find no abuse of discretion where no written motion for new trial was filed on this basis and where the only suggestion that any reliance was placed on this ground in the trial court was in appellant’s attorney’s remark at the conclusion of his opening statement at the hearing on the motion that “Mr. Ladd, who testified in the case, I understand today, will in substance change his testimony concerning what occurred.” Rule 36.22, Arkansas Rules of Criminal Procedure requires that a motion for new trial be filed and include a statement that the movant believes the action to be meritorious and that it is not offered for the purpose of delay. No such motion was filed. Ark. Stat. Ann. § 43-2203 (Repl. 1964) setting out the grounds for new trial remains unaffected by the Rules of Criminal Procedure. Rule 36.22 incorporates a part of Ark. Stat. Ann. § 43-2704 (Supp. 1975), but it does not eliminate the requirement of that statute that a motion for new trial must be served upon a representative of the prosecuting attorney. Obviously, the prosecuting attorney could have had no opportunity to prepare to resist a ¡notion based upon recantation by Ladd. We still do not know in what respects appellant contends that Ladd would change his testimony. In view of these circumstances and the view taken of recanting testimony as newly discovered evidence, it would be impossible for this court to hold that the trial court acted in abuse of its discretion. Other grounds for rehearing are also without merit. Appellant complains that we misinterpreted Murchison v. State, 249 Ark. 861 , 462 S.W. 2d 853 . He overlooks, however, the fact that we cited Murchison for the proposition that we analogize a motion for new trial on suppression of evidence with one on newly discovered evidence and apply rules governing the latter to the former. We did say that diligence of the moving party was critical to the inquiry. We have held that due diligence is an essential. Philyaw v. State, 224 Ark. 859 , 277 S.W. 2d 484 , cert. den. 349 U.S. 967 , 75 S. Ct. 901 , 99 L. Ed. 1288 . Denial of motions for new trial have been held not to be an abuse of discretion where the movant has not used reasonable diligence to discover the evidence before trial. Gross v. State, 242 Ark. 142 , 412 S.W. 2d 279 ; Stevenson v. State, 236 Ark. 847 , 370 S.W. 2d 445 . In Pate v. State, 206 Ark. 693 , 177 S.W. 2d 933 , a new trial was sought on the ground of newly discovered evidence on the allegation that a witness subpoenaed as a witness for the state, but not put on the witness stand, would have given material testimony in behalf of the defendant had he been called as a witness. We held that denial of a new trial was not error, because no reason was shown for the defendant’s failure to discover the witness’s knowledge of the altercation which was the basis of the prosecution on a charge of maiming. The very purpose of requiring the state to disclose the names of witnesses is to permit a defendant to acquaint himself with the facts known by the witness and their probable testimony. Appellant had more than a year within which to do this. He is in no position to charge an abuse of discretion on the part of the trial court without having shown any effort on his part to discover the testimony of Fultz. See also, Lind v. State, 137 Ark. 92 , 207 S.W. 47 . The petition for rehearing is denied. Byrd and Howard, JJ., not participating. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9675457. Public record. Not legal advice.