Page:North Dakota Reports (vol. 48).pdf/135

 pool room in Southam to some one in his auto; that Tufte never asked affiant where he could get some whiskey; that affiant never told him where he could get liquor in Southam. The defendant’s affidavit is merely to the effect that the defendant did not know until after the trial that Severtson would contradict Tufte’s testimony to the extent indicated, and that he had no reason to believe that Tufte would testify that Severtson accompanied him into the affiant’s store. It will be seen that the newly discovered evidence relied upon would not impeach or contradict the testimony of Tufte with reference to his purchase of the liquor, but at best would only negative his testimony as to the circumstances leading up to the purchase. It appears that Severtson was well acquainted with the defendant; that he lived in Southam, where he was engaged in driving a school bus. It would seem that if the testimony of the witness Tufte was thought by the defendant to have been false upon the subject in question, he would have made an effort to obtain Severtson’s testimony before the close of the trial. In view of the defendant's own testimony to the effect that Tufte came into his store on the Sunday in question and bought some other articles, the importance of the con- tradictions is minimized. We are of the opinion that the trial court did not err in the exercise of its discretion against the defendant upon the motion for a new trial. The judgment and the orders appealed from are affirmed.

, C J., and, and , JJ., concur.

, J. I concur in the result.