able doubt, before you would be justified in returning a verdict of guilty against this defendant.”
Under our laws, it is the duty of this court, after hearing an appeal in a criminal action, to “give judgment without regard to technical errors or defects or exceptions, which do not affect the substantial rights of the parties” (§ 11013, C. L. 1913).
The third assignment of error is that the trial court erred in denying defendant’s motion for a new trial on the ground of newly discovered evidence. When this case came on for trial the state offered as a witness one Mrs. Manning, who did not testify upon the first trial. Upon this trial of the action, the defendant was represented by counsel who did not appear for him upon the former trial, although he appeared for him on the appeal to this court. Mrs. Manning testified that she came to the home of the complaining witness on one occasion at or about the time that the crime charged against the defendant is alleged to have been committed; that she knocked on the door, but that no one responded; that she thereupon entered the house, and on opening the door into the kitchen saw the plaintiff and the complaining witness in a compromising position on the floor. Mrs. Manning was the only witness claiming to have witnessed the commission of the crime. In support of the motion for a new trial the defendant submitted certain affidavits tending to show that the witness Manning had made certain statements wholly inconsistent with or contradictory to the testimony which she gave upon the trial of the action. In denying the motion for a new trial the trial court filed a memorandum opinion wherein he stated:
“While I am not satisfied with all of the evidence in this case, there is evidence in the case which, if believed, is amply sufficient to sustain the verdict. As I understand it, the credit to be given a witness, and the weight of the evidence, is for the jury, and the court is not justified in setting aside the verdict simply because he could not have arrived at the same conclusion as did the jury.”
In the certificate of probable cause made by the trial judge upon this appeal he said:
“There is probable cause for an appeal on the part of the defendant. Mrs. Manning’s name did not appear on the information, and the first information that the defendant had was when the case was called for trial that the state would call Mrs. Manning and, the attorneys for the defendant promptly objected to Mrs. Manning testifying, for the reason
