State v. Wagemann
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Opinion of the Court
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MoC'O'Y, J.
From a judgment of conviction of the crime of statutory rape and an order denying a new trial, the defendant appeals.
[1] The sufficiency of the evidence to sustain the verdict is not questioned. Motion for new trial, on the ground of newly discovered evidence, was made based on affidavits tending to show that appellant was not at the home of complaining witness on September 20, 1919, the date when said offense was testified by the complaining witness as having been committed. No diligence to procure such testimony on the trial is shown. The alleged newlly discovered evidence is cumulative and is directly denied. The affidavits in denial of the statements contained in the moving affidavits, relating to the alleged newly discovered evidence, were properly admitted. State v. Southmayd, 37 S. D. 375, 158 N. W. *187 404 . There was no abuse of discretion on the part of the trial court in overruling the motion for new trial.
The judgment and order appealed from are affirmed.
PO'LLEY, P. J., not sitting.
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