that her name was not on the information and on the ground of surprise, and the court reserved its ruling and, when Mrs. Manning was called, permitted her to testify, and if her evidence was believed by the jury this was the strongest testimony the state had, and one of the jury men so expressed himself to me; however, for the reason stated in the order denying a new trial, a new trial was denied.”
The question as to the granting of a new trial on the ground of newly discovered evidence and the functions exercised by the trial court and by the Supreme Court on such motion were fully considered by this court in Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419, and State v. Cray, 31 N. D. 67, 153 N. W. 425, and little can be added to the discussion contained in those two decisions. As therein stated, the question whether a new trial shall be granted on the ground of newly discovered evidence is primarily one for the trial court, and the function of the appellate court is merely to review the ruling of the trial court on such motion, and this review is limited to a determination of the question whether in denying a new trial-the trial court abused its discretion and thereby effected an injustice. 31 N. D. 81, 153 N. W. 425. The function of courts is to dispense justice, and the discretion vested in the trial court should always be exercised in the interests of justice. The presumption, of course, is that it has been so exercised. 31 N. D. 81, 153 N. W. 425. The rules governing the consideration of motions for a new trial on the ground of newly discovered evidence have been formulated to aid in the administration of justice, and to prevent a miscarriage of justice. Hence, where it is shown to the satisfaction’of the trial court that since the trial at which he was convicted, a defendant has discovered certain new and material evidence, which he could not with reasonable diligence have discovered and produced at the trial; and the newly discovered evidence is of such probative force and character that, if considered with all the evidence adduced at the trial, it is likely to raise in the minds of reasonable men a reasonable doubt as to the guilt of the defendant, that is, that such newly discovered evidence is likely to produce a different result upon another trial of the action—then it is the duty of the trial court, however unpleasant that duty may be, to grant a new trial.
“The general rule on the subject, the same being unquestionably correct as an abstract legal proposition, may be briefly stated thus: A new trial, where the motion is based upon newly discovered evidence,
