Blount v. King

179 S.E. 198, 51 Ga. App. 4, 1935 Ga. App. LEXIS 509

Opinion

■Bkoyi.es, C. J.

1. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not. being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. “Newly discovered evidence of the same kind as that which was used on the trial, and going to the same point, is cumulative, and therefore not cause for a new trial.” Brinson v. Faircloth, 82 Ga. 185 (7 S. E. 923); McKinnon v. Henderson, 145 Ga. 373 (3) (89 S. E. 415); McKeneie v. State, 27 Ga. App. 794 (7), 797 (110 S. E. 247). Especially is this true where, as in this case, the newly discovered testimony is directly contradicted by a counter-affidavit.

3. It is well settled that where the judgment of the trial court is proper and legally justified for a reason other than that assigned by him, his action will be affirmed. Kendricks v. Millen, 16 Ga. App. 273 (3) (85 S. E. 264); Memmler v. State, 75 Ga. 576; Summerlin v. Hesterly, 20 Ga. 689 (3) (65 Am. D. 639).

4. Under the foregoing rulings and the facts of this case, the court did not err in overruling the ground of the motion for a new trial based on alleged newly discovered evidence; and, the other grounds of the motion having been expressly abandoned in the brief of counsel for the plaintiff in error, the judgment refusing a new trial must be and is

Affirmed.

MacIntyre and Guerry, JJ., concur.