Rosenberg

The defendant was convicted of the crime of burglary and this appeal is from an order granting his motion for a new trial.

The first point raised is that the court abused its discretion in making the order complained of. It is argued that while the motion was made on all of the statutory grounds set forth in section 1181 of the Penal Code, it referred specifically only to the ground of newly discovered evidence; that counsel for respondent presented that ground alone in his argument; that the court was therefore limited to that ground in considering the motion; and that the order must be reversed since the showing was not sufficient to sustain an order based upon that ground.

Necessarily the appellant concedes that the motion was made upon all of the grounds named in the statute. In making the motion, the following language was used: “At this time, your Honor, the defendant, Victor Rosenberg, moves the court for its order to set aside the verdict of the jury in this case and granting him a new trial upon all of the statutory grounds set forth in section 1181 of the Penal Code, particularly upon the ground of newly discovered evidence, which newly discovered evidence is set forth…