Hanye v. Candler

25 S.E. 606, 99 Ga. 214

Opinion

Simmons, C. J.

1. Where a motion, for a new trial is based exclusively on the ground of newly discovered evidence, and it appears that the 'evidence relied on is cumulative only and would not probably produce a different result, the motion should be denied.

2. In the present case the vital and controlling issue contested at the trial was whether .or not the accused struck the deceased with a knife while both were in a standing position. The accused introduced evidence tending to show he did not so strike, and which, if the same had been believed by the jury, would have established the truth of the accused’s contention upon this point. The newly discovered evidence on which the extraordinary motion for a new trial is based is on the same line, and though more direct, is nevertheless only cumulative of the evidence introduced 'by the accused upon the issue above mentioned; and, in the face of the established and undisputed physical facts of the case, it is not probable that this evidence, had it been introduced at the trial, would have led to a different verdict, or would do so upon another hearing.

3. The motion above referred to being without legal merit, the trial judge did not err in refusing to grant a rule nisi thereon; and this being so, the Supreme Court will not grant a mandamus nisi to the end that he may be compelled to certify a bill of exceptions in which the only error assigned is the refusal to grant such rule nisi. Mandamus nisi denied.

Austin & Pwlc and W. B. Hmmnond, for movant.