May v. State

Powers, J.

The petitioner was convicted under the name of Benjamin P. Stevens of°the crime of forgery. He claimed at the trial, as he now does, that he is not Stevens, who, it is admitted, committed the crime, but is Walter May. So> the question of the petitioner’s identity was one of the principal controversies of the trial. Witnesses were produced by the State who: testified to different points of resemblance between the petitioner and the man Stevens who was known to have committed the forgery; others were produced by the petitioner who testified to points of dissimilarity between them:; and these witnesses gave opinions on the question of identity accordingly. Witnesses for the State gave a good description of the physical appearance of Benjamin Stevens, — his height, weight, complexion, etc. At the time of the trial the petitioner had a heavy full beard and wore glasses. Stevens was described as having a brown or sandy moustache and as not wearing glasses. Immediately after the verdict, the petitioner shaved off his beard, removed his glasses, and then called in the witnesses who had testified at the trial, or the most of them, *333 to give their opinions as to his identity based upon his personal appearance thus altered. The evidence in support of this petition tends to show that these changes, though making his physical appearance more in harmony with the description given of Stevens, made it more certain that he was not in fact Stevens. The evidence taken by the State tends to show that these changes made it more certain that Stevens and May were one and the same person.

There are several reasons why we cannot grant the prayer of this petition. In the first place, it does not satisfactorily appear that due diligence on the part of the petitioner would, not have put him in possession of this evidence in time for use at the trial. To be sure the petitioner and his counsel say in their affidavits that they used all due diligence in this regard ; but this is the mere statement of a legal conclusion, and no facts are set forth, and none appear from the case as presented, from which we can form an independent opinion on that question.

Again, the new evidence is cumulative, merely. It is additional evidence of the same kind to the same point. It varies in certain features from any given at the trial, but it all goes to the question of identity, which is the point referred to in the rule.

And finally, it appears that a motion for a new trial, based upon the same affidavits which are relied upon here, was made in the court below. After hearing, this motion was overruled, a fact which has considerable weight with this Court in . determining questions of this kind. Briggs v. Gleason, 27 Vt. 117 . This motion was addressed to the discretion of that court and is not matter of exception in the absence of abuse. To allow this petition under these circumstances, would be, in effect, to- give the petitioner the benefit of an exception to which he is not entitled.

*334 None of the foregoing reasons are absolutely determinative of the question here presented, but in order to prevail against them a petition would have to be supported by evidence more decisive and controlling in its character than that before us.

Petition dismissed.