Henderson v. Maddox

Court of Appeals of Georgia

Henderson v. Maddox

149 S.E. 59, 40 Ga. App. 91, 1929 Ga. App. LEXIS 26

CourtCourt of Appeals of Georgia

DecidedJune 27, 1929

Docket19895

StatusPublished

Cited by3 cases

This text of 149 S.E. 59 (Henderson v. Maddox) 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.

Bluebook

Henderson v. Maddox, 149 S.E. 59, 40 Ga. App. 91, 1929 Ga. App. LEXIS 26 (Ga. Ct. App. 1929).

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Opinion

Broyles, C. J.

1. Where a writ of error to review a final judgment in a criminal case lias been granted, and that judgment has been affirmed by this court, and subsequently a second bill of exceptions is tendered for the purpose of reviewing a judgment of the trial court upon an extraordinary motion for a new trial, and the judge refuses to sign it, this court will not grant a mandamus nisi, if it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the motion is without merit. Griffin v. Brand, 18 Ga. App. 641 (90 S. E. 90), and cit.

2. “After a person accused of crime has been convicted and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge; and his judgment in passing upon the motion will not be disturbed, unless it appears that his discretion is abused.” Griffin v. Brand, supra; Boatright v. Speer, 31 Ga. App. 194 (2) (120 S. E. 132).

3. In the instant case the extraordinary motion for a new trial was based solely upon alleged newly discovered evidence, and it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the newly discovered evidence is largely cumulative and impeaching. It further appears, from the movant’s statement to the jury upon his trial, that a part of the alleged newly discovered evidence was known to him before the trial. Furthermore, the extraordinary [92]*92motion was defective in that the supporting affidavits as to the residence, character, etc., of the “newly discovered” witnesses fail to give the names of their associates. In view of that defect alone the denial of the motion was not an abuse of the court’s discretion. Ivey v. State, 154 Ga. 63 (6).

Decided June 27, 1929. J. L. Wallace, M. B. Súbanles, for the applicant.

Mcmdamus nisi denied.

Luke and Bloodworlh, JJ., concur.

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Broyles, C. J.

1. Where a writ of error to review a final judgment in a criminal case lias been granted, and that judgment has been affirmed by this court, and subsequently a second bill of exceptions is tendered for the purpose of reviewing a judgment of the trial court upon an extraordinary motion for a new trial, and the judge refuses to sign it, this court will not grant a mandamus nisi, if it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the motion is without merit. Griffin v. Brand, 18 Ga. App. 641 (90 S. E. 90), and cit.

2. “After a person accused of crime has been convicted and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge; and his judgment in passing upon the motion will not be disturbed, unless it appears that his discretion is abused.” Griffin v. Brand, supra; Boatright v. Speer, 31 Ga. App. 194 (2) (120 S. E. 132).

3. In the instant case the extraordinary motion for a new trial was based solely upon alleged newly discovered evidence, and it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the newly discovered evidence is largely cumulative and impeaching. It further appears, from the movant’s statement to the jury upon his trial, that a part of the alleged newly discovered evidence was known to him before the trial. Furthermore, the extraordinary [92]*92motion was defective in that the supporting affidavits as to the residence, character, etc., of the “newly discovered” witnesses fail to give the names of their associates. In view of that defect alone the denial of the motion was not an abuse of the court’s discretion. Ivey v. State, 154 Ga. 63 (6).

Decided June 27, 1929. J. L. Wallace, M. B. Súbanles, for the applicant.

Mcmdamus nisi denied.

Luke and Bloodworlh, JJ., concur.

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Bluebook (online)

149 S.E. 59, 40 Ga. App. 91, 1929 Ga. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-maddox-gactapp-1929.

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