STATE v. WYNN. 287
July 1934 Opinion Per STEINERT, J.
[No. 25029. Department One. July 23, 1934.]
THE STATE OF WASHINGTON, Respondent, v. HOWARD
WYNN, Appellant./1
[1] CRIMINAL LAW (358-1) - NEW TRIAL - NEWLY DISCOVERED EVIDENCE -
IMPEACHMENT. A new trial for newly discovered evidence
will not be granted where its purpose was to impeach or
discredit the testimony given at the trial.
[2] SAME (358-1) - NEW TRIAL - NEWLY DISCOVERED EVIDENCE -
RECANTATION OF FORMER EVIDENCE - DISCRETION OF TRIAL COURT.
Recantation by a prosecuting witness does not
entitle defendant to a new trial as a matter o{ law, but
rests in the discretion of the trial judge, whose denial
of a new trial will not be disturbed when the conviction
was sustained by other ample evidence.
Appeal from a judgment of the superior court for
Snohomish county, Bell, J., entered February 25, 1933,
upon a trial and conviction of carnal knowledge of
two female children. Affirmed.
Jos. H. Smith and A. E. Dailey, for appellant.
Charles R. Denney and Francis W. Mansfield, for
respondent.
STEINERT, J. - The information herein, consisting of
two counts, charged appellant with the crimes of having
had carnal knowledge of two female children.
Conviction on both counts resulted in a judgment and
sentence, from which this appeal was taken.
The two children involved were, respectively, eight
and nine years of age. The evidence in the case presents
a revolting story of repeated acts of nauseating
depravity. We need not recount its details nor introduce
by name any of the parties or witnesses. The
evidence presented to the jury could hardly have produced
any other verdict than the one returned by that
«1» Reported in 34 P.2d 900.
288 STATE v. WYNN.
Opinion Per STEINERT, J. 178 Wash.
body. There is, in fact, no assignment of error as to
anything occurring at, or prior to, the trial.
The only question here raised concerns the correctness
of the ruling of the court in denying a motion for
new trial because of newly discovered evidence. The
motion was based wholly upon the affidavit of one of
the little girls and those of her parents, the purport of
which was to the effect that material portions of the
testimony given by the two children at the trial were
untrue. Counter affidavits of the other girl and her
mother were submitted by the prosecutor. After a
careful consideration and analysis of all the affidavits,
the court denied the motion.
[1] A new trial will not be granted for newly discovered
evidence, where the only purpose of such evidence
is to impeach or discredit evidence produced at
the trial. This rule is firmly established by many decisions
of this court. Orr v. Schwager & Nettleton,
74 Wash. 631, 134 Pac. 501; State v. Hodoff,
88 Wash. 413,
153 Pac. 377; State v. Wilcox, 114 Wash. 14, 194
Pac. 575; State v. Kallas, 134 Wash. 192, 235 Pac. 357.
[2] The specific contention here made by appellant
goes somewhat beyond the mere claim of newly discovered
evidence. It is contended that, one prosecutrix
having repudiated her testimony in certain vital
respects, the basis of the conviction was thereby destroyed,
and a new trial should therefore have been
granted. The conclusion does not inevitably follow its
premise. Recantation by an important witness of his
or her testimony at the trial does not necessarily, or
as a matter of law, entitle the defendant to a new trial.
The determination of such matters rests in the sound
discretion of the trial court, and its action will not be
set aside except for clear and manifest abuse.
The trial judge is in a peculiarly advantageous
position, under the. prevailing circumstances, to pass upon
STATE v. WYNN. 289
July 1934 Opinion Per STEINERT, J.
the showing made for a new trial. He has the benefit
of observing the witnesses at the time of the trial, is
able to appraise the variable weight to be given to
their subsequent affidavits, and can often discern and
assay the incidents, the influences, and the motives,
that prompted the recantation. He is, therefore, best
qualified to determine what credence or consideration
should be given to the retraction, and his opinion is
accordingly entitled to great weight. If the rule were
otherwise, the right of new trial would depend on the
vagaries and vacillations of witnesses rather than
upon a soundly exercised discretion of the trial court.
The untrustworthy character of recanting testimony
is well known by those experienced in the trial of
criminal cases, and when such testimony is offered, it calls
for a rigid scrutiny. When the trial court, after
careful consideration, has rejected such testimony, or has
determined that it is of doubtful or insignificant value,
its action will not be lightly set aside by an appellate
court. People ex rel. Stemmler v. McGuire, 2 Hun
(N.Y.) 269; People v. Tallmadge, 114 Cal. 427, 46 Pac.
282; State v. Blanchard, 88 Minn. 82, 92 N. W. 504;
Harter v. People, 204 Ill. 158, 68 N. E. 447; State v.
Barrick, 60 W. Va. 576, 55 S. E. 652; People v. Shilitano,
218 N.Y. 161, 112 N. E. 733, L. R. A. 1916F,
1044; Little v. State, 161 Ark. 245, 255 S. W. 892;
State v. Dodge, 124 Me. 243, 127 Atl. 899; State v.
Wheat, 166 Minn. 300, 207 N. W. 623; Blass v. People,
79 Colo. 555, 247 Pac. 177; People v. Marquis, 344 Ill.
261, 176 N. E. 314, 74 A. L. R. 751; State v. Buton, 124
Kan. 509, 260 Pac. 634; 16 C. J. p. 1188, SS 2715.
Appellant cites and relies upon State v. Powell,
51 Wash. 372, 98 Pac. 741. That case, however, was one
where the evidence of the prosecuting witness was the
only evidence establishing the guilt of the defendant
290 STATE v. MARTIN.
Syllabus. 178 Wash.
therein. The retraction of her testimony shook the
very foundation upon which the conviction rested.
Not so here. Leaving out of consideration the testimony
of the one prosecutrix, there was ample evidence
to support the conviction of appellant upon each of
the two counts. The trial court heard all the original
testimony of the witnesses at the trial and gave serious
consideration to their subsequent affidavits and the
peculiar circumstances under which they had been
given. The court exercised its sound discretion, and
we fail to see any manifest, or even apparent, abuse
thereof.
The judgment is affirmed.
BEALS, C. J., MILLARD, MAIN, and MITCHELL, JJ.,
concur.