Harrell v. State

Court of Appeals of Georgia

Harrell v. State

28 S.E.2d 821, 70 Ga. App. 521, 1944 Ga. App. LEXIS 27

CourtCourt of Appeals of Georgia

DecidedJanuary 21, 1944

Docket30284.

StatusPublished

Cited by3 cases

This text of 28 S.E.2d 821 (Harrell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harrell v. State, 28 S.E.2d 821, 70 Ga. App. 521, 1944 Ga. App. LEXIS 27 (Ga. Ct. App. 1944).

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Opinion

MacIntyre, J.

This was an extraordinary motion for a new trial, based on newly discovered evidence. The defendant introduced the affidavits of J. P. Farmer, Henry Spivey, and Charlie Metts in support of the motion. The State submitted counter-affidavits, which contradicted the affidavits of Spivey and Farmer as to their presence at the place where they swore they saw and heard the thing stated in their affidavits. If the counter-affidavits introduced by the State were true, the testimony of these two witnesses on another trial would have been of no value, or at most of such character as would not have changed the result upon another trial. Morris v. State, 177 Ga. 365, 366 (170 S. E. 217); Moon v. State, supra. In short, every material allegation sworn to in the affidavits of these two witnesses was contradicted by the counter-affidavits for the State. As to the affidavit of Charlie Metts, the State’s counter-affidavits were to the effect that he was drunk, and that all the material matters stated in his affidavit were untrue. “Motions for a new trial, based on newly discovered evidence, are addressed largely to the discretion of the trial judge; and this court will not reverse his decision refusing a new trial on such ground, unless it is abused.” Hall v. State, 141 Ga. 7 (3) (80 S. E. 307). In the instant case, the motion for a new trial is based on alleged newly discovered evidence, and affidavits were introduced sustaining and disputing the ground of the motion. The trial judge is the trior of the disputed facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses, and in *522 tbe present case he seems to have believed the statements in the affidavits introduced by the State in preference to the statements in those introduced by the defendant. His discretion in refusing t new trial on the alleged pewly, discovered evidence will not be controlled, unless manifestly abused. No such abuse of discretion appears in this case. Bailey v. State, 47 Ga. App. 856 (171 S. E. 874); Hall v. State, supra.

The judge did not err in overruling the extraordinary motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Gardner, J., concur.

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MacIntyre, J.

This was an extraordinary motion for a new trial, based on newly discovered evidence. The defendant introduced the affidavits of J. P. Farmer, Henry Spivey, and Charlie Metts in support of the motion. The State submitted counter-affidavits, which contradicted the affidavits of Spivey and Farmer as to their presence at the place where they swore they saw and heard the thing stated in their affidavits. If the counter-affidavits introduced by the State were true, the testimony of these two witnesses on another trial would have been of no value, or at most of such character as would not have changed the result upon another trial. Morris v. State, 177 Ga. 365, 366 (170 S. E. 217); Moon v. State, supra. In short, every material allegation sworn to in the affidavits of these two witnesses was contradicted by the counter-affidavits for the State. As to the affidavit of Charlie Metts, the State’s counter-affidavits were to the effect that he was drunk, and that all the material matters stated in his affidavit were untrue. “Motions for a new trial, based on newly discovered evidence, are addressed largely to the discretion of the trial judge; and this court will not reverse his decision refusing a new trial on such ground, unless it is abused.” Hall v. State, 141 Ga. 7 (3) (80 S. E. 307). In the instant case, the motion for a new trial is based on alleged newly discovered evidence, and affidavits were introduced sustaining and disputing the ground of the motion. The trial judge is the trior of the disputed facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses, and in *522 tbe present case he seems to have believed the statements in the affidavits introduced by the State in preference to the statements in those introduced by the defendant. His discretion in refusing t new trial on the alleged pewly, discovered evidence will not be controlled, unless manifestly abused. No such abuse of discretion appears in this case. Bailey v. State, 47 Ga. App. 856 (171 S. E. 874); Hall v. State, supra.

The judge did not err in overruling the extraordinary motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Gardner, J., concur.

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28 S.E.2d 821, 70 Ga. App. 521, 1944 Ga. App. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrell-v-state-gactapp-1944.

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