Per Curiam.
1. Extraordinary motions for new trial are not favored. Perry v. State, 117 Ga. 719 (45 S. E. 77) ; Norman v. Goode, 121 Ga. 449 (40 S. E. 268) ; Burge v. State, 133 Ga. 431 (66 S. E. 243) ; Bass v. State, 154 Ga. 112, 115 (113 S. E. 524).
[79]*792. The extraordinary motions for new trials contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found, guilty of perjury in giving that testimony, or where there has been some providential cause, and eases of like character. Malone v. Hopkins, 49 Ga. 221; Cox v. Hillyer, 65 Ga. 57; Harris v. Roan, 119 Ga. 379 (46 S. E. 433) ; Wheeler v. State, 149 Ga. 473 (100 S. E. 568) ; Harris v. State, 150 Ga. 680, 682 (104 S. E. 902).
3. To disqualify a juror who tried the case and swore that he had not formed and expressed an opinion, and had no bias or prejudice, and was perfectly impartial, there should be the affidavits of at least two witnesses, or what is equivalent thereto, against such oath of the juror, otherwise it is but oath against oath, and the verdict will not be set aside on the ground of the incompetency of the juror. Epps v. State, 19 Ga. 102; Hudgins v. State, 61 Ga. 182; Dumas v. State, 63 Ga. 600; Fogarty v. State, 80 Ga. 450, 464 (5 S. E. 782) ; Myers v. State, 97 Ga. 76, 96 (25 S. E. 252) ; Sumner v. State, 109 Ga. 142 (3) (34 S. E. 293); Turner v. State, 111 Ga. 217 (2) (36 S. E. 686); Crawley v. State, 151 Ga. 818 (2 a) (108 S. E. 238, 18 A. L. R. 368). In Myers v. State, supra, this court said that the above rule “has now become established as one of the fixed rules of procedure of force in the courts of this State; and it rests on the theory that the oath of the juror, in response to the affidavit thus filed, or the oath of the juror in response to the questions propounded on the voir dire in which he qualifies himself, being opposed to that of the witness against him, it is a case of oath against oath, and the presumption in favor of the verdict is sufficient to turn the scale, or at least to sustain the exercise of a discretion by the presiding judge in upholding the verdict.” In Sumner v. , State, supra, this court said: “When a new trial of a criminal case is asked on the ground that one of the jurors who tried the case was not a fair and impartial juror, and in support of such ground an affidavit of only one person is presented tending to show that prior to the trial the juror made statements showing that he was prejudiced against the defendant, a new trial, without more, will not be ordered. The juror, having qualified on his voir dire, is to be presumed to have rightly done so until the contrary is shown by more than one witness.”
4. Alleged newly discovered evidence which by the exercise of ordinary diligence could have been discovered in time for use upon the trial of the defendants furnishes no ground for the grant of a new trial. Bass v. State, supra.
5. Hew evidence, which is merely cumulative in character, is not a ground for an extraordinary motion. To warrant a motion there would have to be some circumstance or fact of unusual character, not ordinary in its nature, that delayed or prevented the discovery of the evidence. Puryear v. State, 66 Ga. 753; Harris v. Roan, supra.
6. This court will not by mandamus compel a judge to certify a bill of exceptions assigning error upon his refusal to entertain an extraordinary motion for new trial and grant a rule nisi thereon, when it appears that such motion is without merit. Malone v. Hopkins, Cox v. Hillyer, [80]*80supra; Hanye v. Candler, 99 Ga. 214 (25 S. E. 606); Perry v. State, 102 Ga. 368 (30 S. E. 903) ; White v. Butt, 102 Ga. 552 (27 S. E. 680) ; Harris v. Roan, supra; S. A. L. Ry. v. Reid, 6 Ga. App. 18 (63 S. E. 1130).
7. Applying the above principles, the court did not err in refusing to entertain the extraordinary motion for new trial, because the same was without merit. Assuming the facts therein stated to be true, the trial judge, under settled principles of law, would not have been authorized to grant a new trial.
(а) The alleged newly discovered evidence upon which the plaintiffs rely to disqualify the juror Pennington rests upon the single affidavit of Hempstead. This evidence would be insufficient, under the principle announced above in the third headnote, to require the grant of a new trial.
(б) By the exercise of ordinary diligence the defendants could have discovered the alleged newly discovered evidence of J. W. Murphy and of Z. M. McOart. If the defendants had been at the place of business of Murphy on March 3, 1925, between 4 and 4:30 o’clock p. m., and had bought sandwiches and soft drinks from this witness on that occasion, they certainly knew these facts before their trial, and by the exercise of ordinary diligence could have discovered this witness and procured his testimony on their trial. Furthermore, this witness is now dead, and his affidavit could not be used on another trial of this ease. Fender v. Ramsey, 131 Ga. 440 ( 62 S. E. 527).
(e) If these defendants, on the morning of March 4, 1925, between eight and nine o’clock, were on the public highway between Ingleside and Clarkston, on the Stone Mountain Highway, and were taken up by Z. M. McOart on the truck which he was then and there driving, and if they traveled the Stone Mountain Road with McOart on his truck to Stone Mountain, from Stone Mountain to Snellville, to Grayson and Loganville, and on the way from Stone Mountain to Loganville McOart had tire trouble, twice, and these defendants assisted him in fixing these punctures, and had ample opportunity to thus become acquainted with McOart, they certainly knew these facts, and by the exercise of ordinary diligence could have discovered the whereabouts of McOart, and could have procured his testimony on their trial.
(d) For the above reasons, the extraordinary motion for new trial was without merit, and the trial judge did not err in refusing to entertain the motion. For this reason this court will not grant a mandamus absolute compelling him to certify the bill of exceptions in which error is assigned solely on his refusal to entertain such extraordinary motion for new trial.
8. In all cases of extraordinary motions for new trial, twenty days notice shall be given to the opposite party. Penal Code, § 1091.
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Per Curiam.
1. Extraordinary motions for new trial are not favored. Perry v. State, 117 Ga. 719 (45 S. E. 77) ; Norman v. Goode, 121 Ga. 449 (40 S. E. 268) ; Burge v. State, 133 Ga. 431 (66 S. E. 243) ; Bass v. State, 154 Ga. 112, 115 (113 S. E. 524).
[79]*792. The extraordinary motions for new trials contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found, guilty of perjury in giving that testimony, or where there has been some providential cause, and eases of like character. Malone v. Hopkins, 49 Ga. 221; Cox v. Hillyer, 65 Ga. 57; Harris v. Roan, 119 Ga. 379 (46 S. E. 433) ; Wheeler v. State, 149 Ga. 473 (100 S. E. 568) ; Harris v. State, 150 Ga. 680, 682 (104 S. E. 902).
3. To disqualify a juror who tried the case and swore that he had not formed and expressed an opinion, and had no bias or prejudice, and was perfectly impartial, there should be the affidavits of at least two witnesses, or what is equivalent thereto, against such oath of the juror, otherwise it is but oath against oath, and the verdict will not be set aside on the ground of the incompetency of the juror. Epps v. State, 19 Ga. 102; Hudgins v. State, 61 Ga. 182; Dumas v. State, 63 Ga. 600; Fogarty v. State, 80 Ga. 450, 464 (5 S. E. 782) ; Myers v. State, 97 Ga. 76, 96 (25 S. E. 252) ; Sumner v. State, 109 Ga. 142 (3) (34 S. E. 293); Turner v. State, 111 Ga. 217 (2) (36 S. E. 686); Crawley v. State, 151 Ga. 818 (2 a) (108 S. E. 238, 18 A. L. R. 368). In Myers v. State, supra, this court said that the above rule “has now become established as one of the fixed rules of procedure of force in the courts of this State; and it rests on the theory that the oath of the juror, in response to the affidavit thus filed, or the oath of the juror in response to the questions propounded on the voir dire in which he qualifies himself, being opposed to that of the witness against him, it is a case of oath against oath, and the presumption in favor of the verdict is sufficient to turn the scale, or at least to sustain the exercise of a discretion by the presiding judge in upholding the verdict.” In Sumner v. , State, supra, this court said: “When a new trial of a criminal case is asked on the ground that one of the jurors who tried the case was not a fair and impartial juror, and in support of such ground an affidavit of only one person is presented tending to show that prior to the trial the juror made statements showing that he was prejudiced against the defendant, a new trial, without more, will not be ordered. The juror, having qualified on his voir dire, is to be presumed to have rightly done so until the contrary is shown by more than one witness.”
4. Alleged newly discovered evidence which by the exercise of ordinary diligence could have been discovered in time for use upon the trial of the defendants furnishes no ground for the grant of a new trial. Bass v. State, supra.
5. Hew evidence, which is merely cumulative in character, is not a ground for an extraordinary motion. To warrant a motion there would have to be some circumstance or fact of unusual character, not ordinary in its nature, that delayed or prevented the discovery of the evidence. Puryear v. State, 66 Ga. 753; Harris v. Roan, supra.
6. This court will not by mandamus compel a judge to certify a bill of exceptions assigning error upon his refusal to entertain an extraordinary motion for new trial and grant a rule nisi thereon, when it appears that such motion is without merit. Malone v. Hopkins, Cox v. Hillyer, [80]*80supra; Hanye v. Candler, 99 Ga. 214 (25 S. E. 606); Perry v. State, 102 Ga. 368 (30 S. E. 903) ; White v. Butt, 102 Ga. 552 (27 S. E. 680) ; Harris v. Roan, supra; S. A. L. Ry. v. Reid, 6 Ga. App. 18 (63 S. E. 1130).
7. Applying the above principles, the court did not err in refusing to entertain the extraordinary motion for new trial, because the same was without merit. Assuming the facts therein stated to be true, the trial judge, under settled principles of law, would not have been authorized to grant a new trial.
(а) The alleged newly discovered evidence upon which the plaintiffs rely to disqualify the juror Pennington rests upon the single affidavit of Hempstead. This evidence would be insufficient, under the principle announced above in the third headnote, to require the grant of a new trial.
(б) By the exercise of ordinary diligence the defendants could have discovered the alleged newly discovered evidence of J. W. Murphy and of Z. M. McOart. If the defendants had been at the place of business of Murphy on March 3, 1925, between 4 and 4:30 o’clock p. m., and had bought sandwiches and soft drinks from this witness on that occasion, they certainly knew these facts before their trial, and by the exercise of ordinary diligence could have discovered this witness and procured his testimony on their trial. Furthermore, this witness is now dead, and his affidavit could not be used on another trial of this ease. Fender v. Ramsey, 131 Ga. 440 ( 62 S. E. 527).
(e) If these defendants, on the morning of March 4, 1925, between eight and nine o’clock, were on the public highway between Ingleside and Clarkston, on the Stone Mountain Highway, and were taken up by Z. M. McOart on the truck which he was then and there driving, and if they traveled the Stone Mountain Road with McOart on his truck to Stone Mountain, from Stone Mountain to Snellville, to Grayson and Loganville, and on the way from Stone Mountain to Loganville McOart had tire trouble, twice, and these defendants assisted him in fixing these punctures, and had ample opportunity to thus become acquainted with McOart, they certainly knew these facts, and by the exercise of ordinary diligence could have discovered the whereabouts of McOart, and could have procured his testimony on their trial.
(d) For the above reasons, the extraordinary motion for new trial was without merit, and the trial judge did not err in refusing to entertain the motion. For this reason this court will not grant a mandamus absolute compelling him to certify the bill of exceptions in which error is assigned solely on his refusal to entertain such extraordinary motion for new trial.
8. In all cases of extraordinary motions for new trial, twenty days notice shall be given to the opposite party. Penal Code, § 1091. The notice required by this section of the Code “relates to the time when the party (having at term regularly moved his rule nisi) shall apply for his rule absolute,” and is complied with when the opposite party is served with the copy of the motion for new trial and the rule nisi issuing thereon twenty days before the time at which the hearing is to be had under the rule nisi. Graddy v. Hightower, 1 Ga. 252, 256.
{a) The rule nisi may be moved for without previous notice. The statute has reference to the term or time when a rule absolute is asked, or to [81]*81the term or time when the rule nisi is asked to be made absolute. The idea is that the rule nisi will be applied for in term time, and notice given of the time of the hearing, and place, to the adverse party twenty days before the rule nisi is made absolute. Gauldin v. Crawford, 30 Ga. 674, 677; Crawley v. State, supra.
No. 5352.
March 23, 1926.
(6) It follows that the judge erred in holding that under this section the defendants had to give twenty days notice of their intention to file their extraordinary motion for new trial; but under the principles above ruled, this error does not require the grant of a mandamus absolute.
Mandamus absolute refused.
All the Justices concur.
Allen & Pottle and Branch & Howard, for the applicants.