stating that a defendant and his counsel must show that they “were not negligent in the search for evidence in preparation for the trial of the case” and that they had “no pre-trial knowledge of the alleged newly discovered evidence”
How later courts described this case
- stating that a defendant and his counsel must show that they “were not negligent in the search for evidence in preparation for the trial of the case” and that they had “no pre-trial knowledge of the alleged newly discovered evidence”
- indicating that “[a]n accused seeking a new trial on the ground of newly discovered evidence must file an affidavit setting forth facts showing . . . that he and his [or she and her] counsel had no pre-trial knowledge of the alleged newly discovered evidence”
- indicaling that "[a]n accused seeking a new trial on the ground of newly discovered evidence must file an affidavit setting forth facts showing ... that he and his [or she and her] counsel had no pre-trial knowledge of the alleged newly discovered evidence”
Written by the judges who cited it.
The opinion
GALBREATH, Judge
(dissenting).
I must respectfully dissent. The witness Andrew Go-forth was the single most important witness against the defendant. If his testimony could be proved false, it would meet the test set out in Rosenthal v. State, 200 Tenn. 178 , 292 S.W.2d 1 , allowing the impeachment of a witness because “the testimony of the witness who is sought to be impeached was so important to the issue, and the evidence impeaching the witness so strong and convincing, that a different result must necessarily follow.”
If we assume that the affidavit was attached to the amended motion for a new trial (and there is no real dispute on the part of the State that it was) then whether or not it would necessitate the granting of a new trial cannot be determined here because of the failure of state action on the part of one of the officials, i. e., the appointed attorney, or the cleric whose duty it was to see that this document was preserved for review on appeal. For the reasons discussed in Nelms v. State, 219 Tenn. *168 727 , 413 S.W.2d 378 , and Elliott v. State, Tenn., 435 S.W.2d 812 , dealing with failure of state action on indigent appeals, I would reverse this case and remand for a new trial.