court failed to consider the newly discovered evidence, a matter of the greatest importance. Hismemoranda opinion reads thus:
“While I am not satisfied with the evidence in this case, there is evidence which I believe is sufficient to sustain the verdict. As I understand it, the credit to be given a witness, the weight of evidence, is for the jury, and the court is not justified in setting aside a verdict simply because he could not have arrived at the same conclusion as did the jury.” C. W. Buttz, Judge.
Now, though the trial judge failed to consider and discuss the newly discovered evidence, that is no good reason for remanding the case that he may reconsider the motion, as it might result in a third appeal to this court and in harassing the life out of defendant. The two appeals, with the lengthy transcripts, must have cost him over $1,000. On the record the court should not hesitate to order a new trial. On appeal to this court the first conviction was set aside by reason of the misconduct and overzeal of private counsel who con- ducted the prosecution and swelled the record with matters prejudicial to defendant. On the second trial the same counsel was guilty of similar misconduct. Thus, when several witnesses were called and testified to the good character of the defendant for chastity, he asked each witness questions intimating, and virtually asserting, that defendant had been guilty of gross misconduct with this woman and that woman, thus presenting several issues and poisoning the minds of the jurors. Now, if the overzeal of private counsel did not cause the second conviction, it did cause the second appeal, because on the record it is so manifest that defendant did not have a fair trial, counsel should not have opposed the motion for a new trial. And without some showing of reasonable cause, it was not fair to embarrass the case with private counsel, even though appointed by the Governor and paid $100 by the state. The prosecution has done defendant a grave wrong and imposed on him the burden of two expensive appeals. On each trial the testimony of the accusing witness was improbable and it was flatly contradicted by the defendant. It was word of one against the other. But on the second trial there was in store for defendant a grave surprise. Without any warning one Mrs. Manning, a person of questionable,character for truth, whose name was not on the information, was called and testified that on the eventful day she went to the Day house, rapped three times at the front door, then went to the kitchen door, and to frighten
