The opinion
MR. JUSTICE ANGSTMAN,
(dissenting).
I do not agree that this defendant was in any manner prejudiced by the giving of the instruction set out in the opinion of MB. JUSTICE BOTTOMLY. Defendant here took the witness stand, and testified in his own behalf. He waived the right granted by section 94-8803, B.C.M. 1947, to refuse to be a witness. Having testified in his own behalf, it was entirely proper to instruct the jury as to the consequences of unexplained possession of stolen property.
As to the newly discovered evidence I think the trial judge was in a much better .position than are we to weigh the question as to whether a .different result would likely be reached were a new trial granted within the rule declared in State v. Matkins, 45 Mont. 58 , 121 Pac. 881 . Most of the new matter would do nothing more than implicate Mr. Crocker as a participant in-the crime. Some of it is merely cumulative and the record is open to the conclusion that it might, with reasonable diligence, have been discovered at or before the trial.
I think the granting or refusing of a new trial under the circumstances here was peculiarly within the discretion of the trial judge, and that we should not disturb his ruling. I would affirm the judgment.