Huie

By the Court,

The first point which I shall consider is, whether a new trial should have been granted; and this depends upon the question whether the affidavits on the part of the defendant, presented to the consideration of the district judge sufficient facts to require him to grant a new trial. The application ought not to have been granted, unless the defendant had used due diligence in endeavoring to procure the attendance of his witnesses. Did he use such diligence'? I think not. His witnesses had not been snbpcenaed, as appears from his own affidavit. Did he make reasonable efforts to have *433 them subpoenaed ? I think not. He made no attempt to subpoena them, until the morning of the day on which the tidal was to take place, and actually did take place. This was not using due diligence. For this reason alone the court properly denied the motion for a new trial.

There is also another defect in the papers upon which the motion for a new trial was made. The affidavits do not state the facts which the defendant expected to be able to prove by his absent witnesses. In all cases in which a new trial is moved for, on the ground of surprise, or on the ground of newdy discovered…