The defendant was convicted of manslaughter.
The State maintained that on the 4th of July, 1924, the defendant was the operator of an automobile that struck Mary'Elizabeth Tyler, inflicting injuries from which she died.
The defendant set up an alibi in defence.
The State’s evidence, although circumstantial, carried conviction. The defendant’s alibi was over elaborated, marked by numerous improbabilities of circumstances, recollection and observation. Its transparency was further attenuated by some proven falsehoods.
The affidavit of Yenanzio Brollini, filed by the defendant in support of the defendant’s claim of newly discovered evidence, does not appeal to the court. The deponent, an attorney at law, who was apprised of the defendant’s trial while in progress from a report in the public press, told the .attorney for the defendant a week after the trial that to the best of his knowledge the car that hit the woman was a touring car. This statement is directly contradicted by two counter affidavits by the occupants of a Ford coupe, bearing Ohio number plates, specifically referred to in the Brollini affidavit as having been at the scene of the accident and having first rendered assistance to Mrs. Tyler. They both say, as all the credible testimony at the trial shows, that the car which hit the deceased was a closed car of some dark color. The defendant was the admitted owner and operator of a dark maroon Buiek coupe on the morning in question. ..
The evidence, taken as a whole, proves that the automobile that killed Mrs. Tyler was driven by an operator whose senses were so dulled by drink as to make him unappreciative of the harm and suffering he might, and did, inflict upon an innocent person, and that such operator was the'defendant Cole.
Motion for new trial denied.