Harper v. State

81 S.E. 817, 14 Ga. App. 603, 1914 Ga. App. LEXIS 397

Opinion

Wade, J.

1. A petition for certiorari, setting forth evidence which is adopted in the answer thereto as “practically correct,” is not admissible for the purpose of impeachment on the trial of a case in another court, when there is no further proof of the correctness of the evidence set forth therein.

2. Newly discovered evidence which is not only merely cumulative and impeaching in its character, hut which could have been discovered before the trial by the exercise of ordinary diligence, does not require the grant of a new trial.

3. When two witnesses have equal facilities for both seeing and hearing a particular thingj and one testifies that it happened and the other to the contrary, the testimony of neither witness is negative; and it was • reversible error for the trial judge to charge as to the weight and value of negative evidence, where there was none of that character. Peak v. State, 5 Ga. App. 56 (62 S. E. 665).

4. Where the trial judge imposes a sentence within the limits fixed by law, it is not subject to review on the ground that it is “extreme and oppressive.” Judgment reversed.