State v. Jella

In my judgment it was error to refuse a new trial in this case on the showing made. I agree with *514the rule previously announced in decisions of this court (State v. Stack, 116 Kan. 187, 226 Pac. 238; State v. Turner, 121 Kan. 364, 247 Pac. 427; State v. Buton, 124 Kan. 509, 260 Pac. 634) that the court rather than the jury considers and weighs evidence offered in support of a motion for a new trial, and considers whether it probably would have changed the result. But when the evidence is unquestionably newly discovered, and there was no lack of diligence in securing it, and it is not…