Wells v. State

158 S.E. 641, 43 Ga. App. 347, 1931 Ga. App. LEXIS 353

Opinion

Bloodworth, J.

1. The first special ground of the motion for a new trial is based upon alleged newly discovered evidence of S. F. Gordon. This evidence can not be newly discovered. The affidavit of Gordon shows that he was present prior to the trial and heard a conversation between the defendant and Jessie Zorn relative to the stolen property. See Steel v. State, 149 Ga. 134 (2) (99 S. E. 305). This ground of the motion is incomplete. In Kinnebrew v. State, 81 Ga. 765 (2) (7 S. E. 691), the Supreme Court said: “It is not sufficient for the accused to state in his affidavit that he did not know the facts so sworn to by these witnesses, without stating that he did not know that these witnesses were present at the time.” Moreover, the alleged newly discovered evidence is cumulative and impeaching. Manchester v. State, 171 Ga. 133 (155 S. E. 11); Gaulden v. State, 41 Ga. App. 638 (7) (154 S. E. 209), and cit. The court did not abuse its discretion when it overruled this ground of the motion for a new trial. Hall v. State, 141 Ga. 7 (3), 10 (80 S. E. 307); Harris v. State, 149 Ga. 724 (2) (102 S. E. 159).

2. The second special ground of the motion for a new trial alleges that the court erred in overruling the motion for a continuance made by the defendant. This motion is not complete within itself. It fails to meet several of the requirements of the Penal Code (1910), § 987. Littlefield v. State, 22 Ga. App. 783 (97 S. E. 258); Coleman v. State, 141 Ga. 737 (2) (82 S. E. 227).

3. Grounds 3, 4, and 5 of the amendment to the motion for a new trial are but amplifications of the general grounds. The evidence was sufficient to authorize the jury to find the defendant guilty.

Judgment affirmed,.

Broyles, G. J., and Lulce, J., concur.