Moultrie v. State

Court of Appeals of Georgia

Moultrie v. State

137 S.E.2d 761, 110 Ga. App. 83, 1964 Ga. App. LEXIS 551

CourtCourt of Appeals of Georgia

DecidedJuly 13, 1964

Docket40750

StatusPublished

This text of 137 S.E.2d 761 (Moultrie 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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Moultrie v. State, 137 S.E.2d 761, 110 Ga. App. 83, 1964 Ga. App. LEXIS 551 (Ga. Ct. App. 1964).

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Opinion

Russell, Judge.

“When a motion for new trial is made on the ground of newly-discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. If the newly-discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be ad[84]*84duced.” Code § 70-205. An extraordinary motion for new trial on the basis of newly discovered evidence must show that the evidence is not merely cumulative or impeaching, for which reason a certified copy of the brief of evidence on the trial of the case is an absolute prerequisite to a valid motion. Fields v. State, 212 Ga. 652 (94 SE2d 694). The motion here, filed over eight years after defendant’s conviction, contains no brief of evidence. There is no affidavit of counsel, and it does not appear that counsel was not present assisting the defendant at the trial. There is no statement that the existence of the alleged new evidence was not known at or before the trial, and there are no supporting affidavits.

Decided July 13, 1964. Warren E. Moultrie, pro se. Andrew J. Whalen, Jr., Solicitor General, contra.

The extraordinary motion for a new trial was properly overruled.

Judgment affirmed.

Nichols, P. J., and Hall, J., concur.

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Russell, Judge.

“When a motion for new trial is made on the ground of newly-discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. If the newly-discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be ad[84]*84duced.” Code § 70-205. An extraordinary motion for new trial on the basis of newly discovered evidence must show that the evidence is not merely cumulative or impeaching, for which reason a certified copy of the brief of evidence on the trial of the case is an absolute prerequisite to a valid motion. Fields v. State, 212 Ga. 652 (94 SE2d 694). The motion here, filed over eight years after defendant’s conviction, contains no brief of evidence. There is no affidavit of counsel, and it does not appear that counsel was not present assisting the defendant at the trial. There is no statement that the existence of the alleged new evidence was not known at or before the trial, and there are no supporting affidavits.

Decided July 13, 1964. Warren E. Moultrie, pro se. Andrew J. Whalen, Jr., Solicitor General, contra.

The extraordinary motion for a new trial was properly overruled.

Judgment affirmed.

Nichols, P. J., and Hall, J., concur.

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137 S.E.2d 761, 110 Ga. App. 83, 1964 Ga. App. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moultrie-v-state-gactapp-1964.

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