Shirley v. State

111 S.E. 740, 28 Ga. App. 462, 1922 Ga. App. LEXIS 601

Opinion

Bloodworth, J.

1. There is.no merit in that ground of the motion for a new trial which alleges error in the charge of the court in reference to the “ maximum ” and “ minimum ” term the jury could prescribe by their verdict.

2. A new trial should not be granted on the ground of alleged newly discovered evidence, because: (a) The alleged newly discovered evidence is that of two men who were walking in the road with accused when, as claimed by him, he was stopped by the prosecutor and the quarrel occurred, and the witnesses themselves swear that they heard the quarrel and saw the fight. This evidence could have been discovered before the trial by the exercise of ordinary diligence. (&) The only effect of the evidence would be-to impeach the witnesses for the State, and it is settled law in this State that even “though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted.” Key v. State, 21 Ga. App. 795 (95 S. E. 269).

3. There is ample evidence to support the verdict; the trial judge has approved it, and, no error of law having been shown, this court has no power to interfere.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.