Sinkfield v. State

209 S.E.2d 188, 232 Ga. 892, 1974 Ga. LEXIS 1129

Opinion

Hall, Justice.

Defendant appeals from an order of the trial court vacating and setting aside a rule nisi issued previously and refusing to entertain his extraordinary motion for new trial based on newly discovered evidence. His convictions on two counts of rape and one count of child molestation were affirmed in Sinkfield v. State, 231 Ga. 875 (204 SE2d 588).

Submitted September 13, 1974 Decided September 24, 1974 Rehearing denied October 8, 1974. Grace W. Thomas, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.

The defendant failed to show the first two requirements for an extraordinary motion for new trial stated in Bell v. State, 227 Ga. 800, 805 (183 SE2d 357): (1) no knowledge of the evidence until after the trial and (2) no want of due diligence. Under these circumstances, it is proper for the judge to decline to entertain the motion and to refuse to grant a rule nisi thereon. See Fulford v. State, 222 Ga. 846, 847 (152 SE2d 845).

Judgment affirmed.

All the Justices concur.