Show WELLING VICTIM OF oi ACCESSORY DEFENSE SAYS State Assails Claim of New Evidence for Retrial p I- Charges that Secretary of ot State Milton H. H Welling wa war convicted convict d ot ota of a felony on the uncorroborated t tea tes- of an accomplice or an accessory accessory accessory ac ac- after the fact were hurled by Attorney Burton W. W Musser Monday Monday Monlay Mon- Mon day lay as he resumed arguments on a motion for a new trial Mr V Welling was found guilty guilly June 29 20 by a district court jury of presenting a false claim to the U state board of examiners in 1931 He has not yet been sentenced After contending Harold P. P Richards Richards Rich Rich- ards former employ of the secretary secre tary ary of state to whom Mr Musser referred in his arguments was probably in the class of an accessory accessory sory District Attorney Calvin W W. Rawlings declared corroboration of f the tho testimony was not not essential Continuing Mr Rawlings assailed the purported new now evidence of the defense introduced to support the motion for a new trial At Courts Court's Discretion Affidavits of Mr and Mrs V. V H. H Lamoreaux Downey Idaho caf cafe operators stating Mrs Golda Richards Rich Rich- ards one of the states state's material mt wit wit- nesses ses admitted September 21 1934 1934 she sho got the but should should have had a lot more were termed by Mr Rawlings as cumulative ive contradictory contradictory contradictory tory and impeaching evidence which the court is not bound to recognize recognize recognize rec rec- rec- rec in considering whether a new trial should be granted Granting a new trial is entirely discretionary with the court said Mr Rawlings as ho he opened his argument argument argument ar ar- ar- ar against the motion b before fore foreJudge Judge Roger I. I M McDonough Donough But the power should be eX exercised exercised exer exer- r- r carefully After verdict a ha has hal been returned it should be consid considered ered cred sacred and a n new trial should not be granted in this case unless i ithe the court believes the character of the so-called so new evidence is la such luch that it would have changed the minds of those jurors said Mr Rawlings Counsel emphasizes that the jurors jurors jur jut ors during th their ir deliberations appeared appeared ap to be in in need of some additional additional additional addi addi- facts and intimates that it was new evidence But it was not What they needed was wa amplification tion of cf the instructions and that is shown b by the fact that after receiving this they returned within an hour with Uli witha Ulia a verdict continued Mr Rawlings Truck Driver Hears Tale Tate George Preston reston junior defens defense counsel resumed th the arguments when court M Monday In citIng citing citing cit cit- cit cit- ing cases to support defense arguments arguments ments he revealed for the first time how Mr Welling learned of ot possible testimony that Mr M. and Mrs Lamoreaux Lamoreaux Lamoreaux Lam Lam- might give in the case A bakery wagon driver who visited visited visited visit visit- ed the newly discovered defense witnesses witnesses wit wit- nesses after the verdict was rendered rendered rendered ren ren- ren- ren dered conversed with them about the case case and learned of the conversation conversation conversation conver conver- Mr and Mrs Lamoreaux al allegedly allegedly allegedly al- al had with Mr Mt and Rich Mrs Richards Rich Rich- ards in September 1931 1934 The information information mation was passed on by the wagon driver to parties close to Mr Welling Welling Well Well- ing lag sand and now becomes become one of the main points upon which the defense relies for or a new trial IfS If the Lamoreaux testimony had been available to the the- defense at the time of the trial it would most c certainly r- r have be been n used to impeach contradict or vary the states state's star witnesses said Mr Preston There could not be a miscarriage of ot justice by letting Jetting the jury hear that evidence But there might be bea a miscarriage o or of justice by denying its it presentation concluded the a at at- at Lorney torney In taking up t the e argument t tro train from that point Mr Musser reviewed testimony tes tea o of several trial trial witnesses witness s which he said failed to show proof of the defendants defendant's i intent tent t to defraud d. d On the other hand it shows definitely definitely dell dell- Mr r. r Welling had no Intent to defraud said Mr R Rawlings It shows the secretary of state told at least two persons persons' persons persons' he be wanted to compensate Mrs rs Richards for helpIng helpIng helping help help- oftie ot of ing her husband check cheek violations the tie motor vehicle act on his various field trips Attacks Testimony Referring to testimony CI of af Mr and Mrs Richards Mr Musser si said d She rec received ived the money All this thing is just an af afterthought e. e thought to tod de destroy destroy de- de stroy their benefactor coupled with ith another scheme to g get t another by fraudulently padding Mr Richards' Richards expense account The he only other comes from a a criminal himself himell el shouted Mr Musser or he is an accomplice of f an accessory after the ta fact t. t Im I'm not sure suro In what wh t category J he lies He was the one who took the the check to Smiths Smith's room Cl CJ Clarence EL E. ELSmith Smith another of the secretary sec eec of ot state and induced Smith to o indorse it No one could do those things and not be e a an accomplice and that is what Ri Richards har s is with his testimony un uncorroborated rated Our statutes say a person shall shan not be convicted on uncorroborated testimony mony of an accomplice At that point Mr vigorously vigor contended Mr Richards could only be an ap accessory and fh that t c cor- cor cOr- cOr r- r of h ins ns s testimony was was not necessary Mr Musser dealt briefly with it the final point of ot his ale motion e Ho said the I trial rial court erred when it t permitted the tio l to split 51 11 t its itA 1 proof root t. t tS |