CALLISTER, Chief Justice:
Defendant appeals from his conviction, upon a jury verdict, of the crime of robbery. Ray Rambo, an attendant in a Standard Oil Service Station in Salt Lake City, was robbed by a man, wielding a gun, at approximately 10:45 p.m. on September 21, 1969. Defendant was arrested on October 10, 1969, and subsequently tried and convicted.
At the trial, Mr. Rambo positively identified the defendant. He further testified, during the course of his direct examination, that on the night of the incident he selected defendant's photograph from a group presented by the police. Defense counsel asserted an objection, citing the testimony as irrelevant and self-serving. The court stated that it didn't see the relevancy, and the matter was not pursued. Thereafter, Officer Stagg testified that on the night of the crime, after receiving a description of the robber from the victim, he showed Mr. Rambo 10 or 12 photographs. Defense counsel, again, asserted the same objection, which the trial court overruled. Officer Stagg testified that the victim immediately selected the picture of defendant.
On appeal, defendant asserts that the trial court committed prejudicial error by permitting the admission of testimony of an extra-judicial identification. Defendant urges that such evidence is hearsay and provides a means whereby a witness can bolster his own testimony by additional self-serving evidence.
In State v. Owens,
Defendant further contends that the trial court erred in its denial of his motion for a new trial upon the ground of newly discovered evidence, Section 77-38-3(7), U.C.A. 1953.
The determination of whether to grant a motion for a new trial on the ground of newly discovered evidence is a matter solely within the discretion of the trial court. This court cannot substitute its discretion for that of the trial court, whose rulings will be sustained unless it is clearly indicated that it abused or failed to exercise its discretion.
In the instant action, defendant testified at his trial and vigorously denied his involvement in the crime. He stated that he had no specific recollection of the night in question; but, since it was a Sunday evening and he had a habit of going to the Stardust Lounge on Sundays, he was probably at this location. The newly discovered evidence was an affidavit from defendant's wife, who currently resides in Denver, Colorado, and claims that by that fact she was unavailable to testify or aid her husband in reconstructing the events of September 21, 1969. She states that since her husband's conviction, she has reconstructed the events that occurred that Sunday and that defendant was in her presence from 8:30 p.m. until 1:00 a.m. of the following day. She recites in detail their movements and includes a statement that her husband's car was reported stolen to the police. Included in the affidavit was a statement that defendant and his wife had been informally separated since November 20, 1968, but that from that time until January of 1970, they had periodically attempted to effect a reconciliation and live together. Thus the affidavit reveals that defendant's wife was in close contact with him for several months after his arrest in early October, 1969; during this period, if defendant had exercised reasonable diligence, he could have discovered the facts he currently characterizes as newly discovered evidence. The wife's testimony is merely cumulative to defendant's; he was not present at the station on the night of the crime. Finally, the facts recited in the affidavit are not of the type that would indicate the probability of a different result upon the retrial of the case. From the foregoing there is an insufficient basis upon which to predicate a determination that the trial court abused its discretion.
The judgment of the trial court is affirmed.
TUCKETT, ELLETT, HENRIOD, and CROCKETT, JJ., concur.