Glass v. State

32 S.E.2d 294, 198 Ga. 491, 1944 Ga. LEXIS 439

• Court: Supreme Court of Georgia
• Decided: November 21, 1944
• Docket: 15024.
• Status: Published

Opinion

Grice, Justice.

1. This court is without jurisdiction to entertain and pass upon an assignment of error in a bill of exceptions presented on August 12, 1944, complaining of a ruling entered on May 30, 1944, denying a motion for new trial. Code, §§ 6-903, 6-904; Harrison v. Lyerly Ginneries &c. Co., 155 Ga. 695 (117 S. E. 818); Brumfield v. Jackson, 193 Ga. 548 (19 S. E. 2d, 279).

2. Treating the motion, filed after the refusal to grant the motion for new trial, as a motion for rehearing, the denial of which is also assigned as error, no abuse of discretion is shown in refusing to vacate the order refusing a new trial.

3. Treating the sec< nd motion, not as a motion for rehearing, but as an extraordinary motion for new trial, no error is shown in refusing to grant it.

(a.) Applications for new trial on the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant a new trial on that ground will not be reversed unless there has been an abuse of such discretion. McCoy v. State, 191 Ga. 516 (13 S. E. 2d, 183).

(6) To render alleged newly discovered evidence available as cause for new trial, it should appear that the evidence itself is newly discovered, not merely that a certain witness by whom the contention of the losing party can be proved was unknown until after the trial. Burgess v. State, 93 Ga. 304 (20 S. E. 331); Jinks v. State, 117 Ga. 714, 716 (44 S. E. 814).

(o) The evidence of the witness last referred to would merely have contradicted the witnesses for the State, whose evidence, as it appears in this record, abundantly supported the verdict of guilty, and the judge could well have found that it probably would not have changed the result. McLaughlin v. State, 141 Ga. 132 (80 S. E. 631).

Judgment affirmed.

All the Justices concur. Charles J. Graham, for plaintiff in error. T. Grady Head, attorney-general, John A. Boykin, solicitor-general, J. B. Parham, Durwood T. Pye, and Victor Davidson, assistant attorney-general, contra.