Bass v. State
154 Ga. 112
Ga.
1922
Check Treatment
Hines, J.

(After stating the foregoing facts.)

The court did not err in overruling the extraordinary motion for new trial. The granting of a new trial on the ground of newly discovered evidence is not favored by the courts. Perry v. State, 117 Ga. 719, 720 (45 S. E. 77); Norman v. Goode, 121 Ga. 449 (49 S. E. 268); Burge v. State, 133 Ga. 431 (66 S. E. 243).

The essential and vital elements of this ground of a motion for new trial are well defined. Penal Code, § 1088. The newly discovered evidence refers to two different subjects. One deals with the impeachment of Helen Sheffield, who was sworn as a witness on the trial of the defendant, and who swore that she was an eyewitness and witnessed the shooting of his wife by the defendant. In her affidavit Mrs. H. C. Woodard swears that Mrs. Sheffield stated to her, on Wednesday after the shooting, that she did not see it and did not see the defendant shoot his wife. This evidence is'impeaching, and affords no legal reason for the grant of a new trial. *116Johnson v. State, 149 Ga. 214 (99 S. E. 609); Wheeler v. State, 149 Ga. 473 (100 S. E. 568); Collins v. State, 151 Ga. 431 (107 S. E. 159). The other branch of the newly discovered evidence relates to the intoxication of the defendant at the time and shortly after the commission of the homicide. The evidence is embraced in the affidavits of L. E. Watson, W. N. Watson, Mrs. H. C. Woodard, and J. W. Bass. The extraordinary motion for new trial is verified by the defendant to the best of his knowledge and belief. As to the evidence of L. F. Watson, the motion' recites that the defendant “has learned that he can prove by L. F. Watson . . that he was under the influence of whisky at the time of the alleged homicide in this case.” He does not state that he had learned this fact since his trial. As to the testimony of Mrs. H. C. Woodard, the motion recites that the defendant “has learned since the trial of said case, for the first time, that he can prove by Mrs. H. C. W'oodard that he was drunk at the time of the alleged homicide, and had been drunk for several days.” As to the testimony of J. W. Bass the motion recites that “the defendant has learned, since his trial and conviction, . . that he can prove by his father, J. W. Bass, that he was under the influence of liquor for several days before the killing of his wife.” As to the testimony of W. N. Watson the motion recites that “the defendant has learned of this evidence since his trial and conviction of the olfense of murder in Laurens superior- court, charged with killing his wife.”

Attached to this motion is • an affidavit of the defendant, in which he makes no reference whatever to the alleged newly discovered evidence of L. F. Watson, W. N. Watson, and J. W. Bass, but in which he swears “ that he did not know that the said Mrs. H. C. Woodard knew anything about the said case, or that she knew anything about what Mrs. Sheffield told her, or that she would testify in said case to anything either material or immaterial in said case, until the 18th day of January, 1922, and until after the verdict of the jury had been rendered for several months,” when this -witness “ informed him of the said conversation with the said Mrs. Sheffield and related to him the other facts in said case on said above date.”

Alleged newly discovered evidence is no cause for a new trial, unless it shall appear that the evidence itself is newly discovered, *117not merely that certain named witnesses by whom the facts can be proved were unknown until after the trial. Burgess v. State, 93 Ga. 304 (20 S. E. 331); Jinks v. State, 117 Ga. 714, 716 (44 S. E. 814).

Mrs. Woodard'lived within two or three hundred yards of the defendant, and by the slightest diligence the defendant could have discovered whether this witness knew the facts sought to be proved by her. Georgia Life Insurance Co. v. Hanvey, 143 Ga. 786, 788 (85 S. E. 1036). For the same reason the defendant could easily have learned what his father knew about the facts of this case, as his father was living with him at the time of the homicide. Both L. E. Watson and W. N. Watson -were officers who were connected with the-arrest and incarceration of the defendant; and he could easily have learned from them all facts which they might know which were material to his defense. By the exercise of ordinary diligence the alleged newly discovered evidence could have been discovered in time for use upon the trial of the defendant. Tilley v. Cox, 119 Ga. 867 (4) (47 S. E. 219); Srochi v. Ventress, 140 Ga. 345 (78 S. E. 1003); Jones v. Waters, 148 Ga. 284 (96 S. E. 386). The court did not abuse its discretion in overruling the defendant’s extraordinary motion for new trial.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent.