People v. Lum Yit

— The respondent in this case was charged with and convicted of the crime of robbery. He moved for and obtained a new trial; from the order granting his motion, the people appeal.

The fourth and sixth of the several grounds upon which the motion was .based were, respectively, that the verdict was contrary to the evidence, and that material evidence had been newly discovered, which the defendant with reasonable diligence could not have found and produced at the trial:

In support of the motion upon the last ground, the respondent introduced the affidavits of six different persons. The court in granting the motion did not specify any particular ground in its order. The argument of the appellant is, that as the instructions given to the jury do not appear in the record, and as no exception was taken to the admission of evidence, nor to any ruling of the court, the motion must necessarily have been granted *131 upon the ground of newly discovered evidence; and as the several affidavits consisted merely of the opinions of the respective affiants as to the innocence of the respondent, they were consequently incompetent, and insufficient to warrant a new trial. We agree with the…