Morris v. State

145 S.E. 445, 167 Ga. 286, 1928 Ga. LEXIS 142

• Court: Supreme Court of Georgia
• Decided: November 14, 1928
• Docket: No. 6747
• Status: Published

Opinion

Gilbert, J.

George Morris was indicted for the offense of murder. On the trial a verdict of guilty, with recommendation of mercy, was returned. A motion for new trial, based upon the general grounds, was filed, and was subsequently amended by the addition of three grounds. The first of these was based upon newly discovered evidence tending to establish the defense of alibi, which had been set up on the trial. The second merely tended to contradict evidence of a witness sworn on the trial in behalf of the State. The third attacked the qualification of a juror who participated in the trial of the case, on the ground of prejudice and bias. The movant complied with the statute in attaching the affidavits of movant and his counsel, to the effect that they did not know of the evidence before the conclusion of the trial, and could not have discovered it by the exercise of due diligence. There were also affidavits tending to show the credibility of the affiants who made affidavits as to newly discovered evidence. The State filed a counter- affidavit of the juror attacked, in -which he expressly denied making the statement charged to him, or that he knew the persons making the charge, or that he had ever at any time discussed the case with either of them. The court overruled the motion, and the exception is to that judgment. Tí eld:

1. The verdict is supported by evidence.

2. The newly discovered evidence, as to the merits of the case, is cumulative and impeaching. The judgment refusing a new trial on these grounds will therefore not be reversed.

No. 6747. November 14, 1928. Lankford, Rogers & Newion, Corbitt & .Pope, and Wimberly E. Brown, for plaintiff in error. George M. Napier, attorney-general, A. S. Bradley, solicitor-general, and T. R. Gress, assistant attorney-general, contra.

3. “In passing upon a ground of a motion for a new trial based upon alleged expressions of opinion of jurors before the trial as to the guilt of the accused, the trial judge occupies the place of a trior, and his finding that the jurors were competent will .not be reversed unless under all the facts tile discretion of the judge was manifestly abused.” Hall v. State, 124 Ga. 649 (52 S. E. 891); Hall v. State, 141 Ga. 7 (80 S. E. 307); McKie v. State, 165 Ga. 210 (10) (140 S. E. 625).

Judgment affirmed.

All the Justices concur.