Downs v. State

Court of Appeals of Georgia

Downs v. State

233 S.E.2d 32, 141 Ga. App. 173, 1977 Ga. App. LEXIS 1818

Court of Appeals of Georgia·Decided February 2, 1977·No. 53195·Published·Cited by 6 cases

Opinion

Bell, Chief Judge.

Defendant was convicted of the abandonment of an illegitimate child. A motion for a new trial on grounds of *174 newly discovered evidence was filed. The defendant submitted an affidavit of an acquaintance of both the prosecutrix and the defendant in which it was averred that the prosecutrix had accused other men of the paternity of the child. The motion was denied. Held:

Submitted January 17, 1977 Decided February 2, 1977. Elsie H. Griner, for appellant. Vickers Neugent, District Attorney, Terry R. Barnick, Assistant District Attorney, for appellee.

There was no showing that this evidence could not have been discovered by the exercise of ordinary diligence. The mere allegation that the evidence could not have been discovered by ordinary diligence is insufficient. Mills v. State, 193 Ga. 139 (17 SE2d 719). Secondly, the evidence was purely impeaching in character which will not authorize a new trial. Code § 70-204.

Judgment affirmed.

McMurray and Smith, JJ., concur.

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Bell, Chief Judge.

Defendant was convicted of the abandonment of an illegitimate child. A motion for a new trial on grounds of *174 newly discovered evidence was filed. The defendant submitted an affidavit of an acquaintance of both the prosecutrix and the defendant in which it was averred that the prosecutrix had accused other men of the paternity of the child. The motion was denied. Held:

Submitted January 17, 1977 Decided February 2, 1977. Elsie H. Griner, for appellant. Vickers Neugent, District Attorney, Terry R. Barnick, Assistant District Attorney, for appellee.

There was no showing that this evidence could not have been discovered by the exercise of ordinary diligence. The mere allegation that the evidence could not have been discovered by ordinary diligence is insufficient. Mills v. State, 193 Ga. 139 (17 SE2d 719). Secondly, the evidence was purely impeaching in character which will not authorize a new trial. Code § 70-204.

Judgment affirmed.

McMurray and Smith, JJ., concur.

Downs v. State, 233 S.E.2d 32, 141 Ga. App. 173, 1977 Ga. App. LEXIS 1818 (Ga. Ct. App. 1977).

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Opinion

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