Page:North Dakota Reports (vol. 48).pdf/398

 knows where the alleged and so-called masks were supposed to have been discovered by the Hofer children; that he had been over that particular place many times during the time he worked on the Wolff farm; that on the Sunday after the murder was discovered there were hundreds of people in the Wolff premises and in the yard, and that practically every foot of the land was gone over by the people, who were looking about for any evidence they might find which would help to throw light upon the question of who committed the murder; that after he finished the work on the Wolff farm he kept his stock in the Wolff pasture, and watered them at the Wolff farm well located on the Wolff farm, and went three times a week during the whole summer and fall; that he fixed up the fence which was within a very few feet of the place where the Hofer children are presumed to have discovered the so-called masks; that he seeded a small strip of ground which is within five or six feet from this fence; that the so-called masks are supposed to have been found in this strip of grass between the said fence and the ground seeded; that he did not see anything of the so-called masks at any time while on the Jacob Wolff farm; that he has seen the so-called masks which are in the possession of the sheriff, and which were this day shown him by Sheriff O. H. Stefferud, and that he never saw the same upon the Jacob Wolff farm at any time; that he also was shown the woman’s dusting cap claimed to have been found on the Jacob Wolff farm by the Hofer children, and that he never saw the same on the Jacob Wolff farm.

The statements in Kiemele’s affidavit are in several respects corroborated by the affidavits of Emanual Hofer and Sheriff Stefferud.

After careful consideration of all the affidavits on behalf of the defendant relative to newly discovered evidence, and considering the length of time since the commission of the crime until the new evidence is alleged to have been discovered, and considering further the proximity of the place where the new evidence was discovered to the house of Jacob Wolff, and that immediately after the crime all of the premises was carefully searched by the officers and masses of people for the purpose of discovering evidence which would lead to the detection of the perpetrator, it is unbelievable that the masks and other alleged new evidence could have been theretofore undiscovered. We are therefore certain that the trial court did not err in refusing to grant a new trial on the grounds of newly discovered evidence.

The second error assigned, and the last to be discussed, is to the ef-