Brown v. State
82 S.E. 238
Ga.
1914
Check Treatment
Lumpkin, J.

(After stating the foregoing facts.)

■ 1. In Young v. State, 56 Ga. 403, Bleckley, J., said (p. 405) “It was early ruled by this court that newly discovered ■ evidence, was not a favored ground for new trial: 10 Georgia Reports, 512; 12 Ibid. 500. If this ground-was not favored then, hоw watchfu) *786of it should we be now? The incentives to caution have been multiplied within a few years past, tenfold, perhaps a hundredfold. From causes that have bеcome history, and that are known to us all, the value of affidavits taken promiscuously has come to be low indeed. Only the most credulous of men would habitually regard the contents of such affidavits as sufficient to overcome the verdict of a jury. And unless it is reasonably apparent to the judicial mind that the new facts would prоbably produce a different verdict, a new trial should not be ordered. 10 Georgia Eeports, 512.” See Burge v. State, 133 Ga. 431 (66 S. E. 243). Applications for new trials upon the ground of newly discovеred evidence are addressed to the sound discretion of the ‍​‌‌​‌‌​‌‌‌‌​​​​​‌‌​‌‌‌​​​​​​‌​‌‌​​‌​​​‌​​​​​‌‌‌​‍trial judge, and a refusal to grant a new trial on, that ground will not be reversed unless his discretion is abused. Miller v. State, 119 Ga. 561 (46 S. E. 838); Bradford v. Brand, 132 Ga. 642 (64 S. E. 688). These rulings were made in cases where newly discovered evidence was made the ground of a first motion for a new trial, and made in due time after the verdict. The rulеs announced apply with even greater force where one accused of crime has been regularly tried and convicted, and has made a motiоn for a new trial and failed to obtain it, and where the judgment has been affirmed by this court. The general rule requires that every application for a new trial shall bе made at the term at which the trial was had, and, when the term continues longer than thirty days, that it shall be filed within thirty days from the trial. The exception allowed is "in extraordinary сases.” Civil Code (1910), § 6089. By section 6092 it is declared, that, whenever in any criminal case a motion for a new trial shall have been made at the term of the trial and overruled, or when a motion for a new trial has not been made at such term, in either event no motion for a new trial from the same verdict shall ever be made or received, "unless the same be an extsaordinary motion or case, such as is provided for in section 6089 of this Code,” and that only one extraordinary motion can be made.

In Malone v. Hopkins, 49 Ga. 221, Warner, C. J., said (p. 227): "To entitle the defendant to make a second motion for a new trial, after he has once been heard, will require such an extraordinary statement of facts, according to the repeated rulings of this court, as would probably produce a different result if a new trial should be granted; and the extraordinary statement of facts relied on to *787produce that result must have been unknown to the defendant, or his counsel, at the time of the first motion, and cоuld not have been ascertained by ‍​‌‌​‌‌​‌‌‌‌​​​​​‌‌​‌‌‌​​​​​​‌​‌‌​​‌​​​‌​​​​​‌‌‌​‍them in the exercise of proper diligence for that purpose.” And, after referring to the facts of the case thеn'under consideration,-he added: “The certainty of punishment of those who violate the criminal laws of the Staté is the only preventive of crime.”

In Cox v. Hillyer, 65 Ga. 57, the same eminent chief justice, in considering the expression “an extraordinary motion or case,” as used in the code section above cited (which was contained in the codе then in force, under another number), said: “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transаction of human affairs, as when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or wherе one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and eases of like character.” Harris v. Roan, 119 Ga. 379 (46 S. E. 433).

In Rawlins v. Mitchell, 127 Ga. 24 (55 S. E. 958), it was said that a statement of Chief Justice Warner, that the only exception to the general rule prohibiting the granting of a second bill of exceptions in a case where the overruling of the motion for ‍​‌‌​‌‌​‌‌‌‌​​​​​‌‌​‌‌‌​​​​​​‌​‌‌​​‌​​​‌​​​​​‌‌‌​‍a new trial had been affirmed is in case of an extraordinary motion for new trial, was too broad; but the discussion by Chief Justice Warner of the nature of an extraordinary motion was not overruled, In Rogers v. State, 129 Ga. 589 (59 S. E. 288), the rule was again recognized, that, after the overruling of one motion for a new trial has been affirmed by this court, it is not error for the trial court to overrule an extraordinary motion for a new trial, where it does not appear that such an extraordinary state of facts is shown by the affidavits submitted upon the hearing of such a motion as would probably produce a different result if a new trial should be granted; and also that whether an extraordinary motion, based upon the ground of newly discovered testimony, should be granted or refused, rests largely in thе sound discretion of the trial court.

Tested by these rules, there was no error in overruling the extraordinary motion for a new trial in the present ease. Some of the newly discovered evidence was mere hearsay. When taken as a *788whole, we can not say that the presiding judge abused his discretion in holding ‍​‌‌​‌‌​‌‌‌‌​​​​​‌‌​‌‌‌​​​​​​‌​‌‌​​‌​​​‌​​​​​‌‌‌​‍that the new evidenсe would not probably have ■ produced a different result.

2. Objection was made by the defense to the introduction in evidence of counter-affidavits on behаlf of the State, on the grounds, that there was no rule of law which authorized the reading of such evidence in reply to the showing made by the movant; that such affidavits had not been served on the movant or his attorneys; and that no affidavit was offered vouching for the character, veracity, or reputation of the affiants making such counter-affidavits. The first objection is 'answered by the decision in Meeks v. State, 57 Ga. 329, where it was declared: “Inasmuch as a new trial for newly discovered evidence should not be grаnted unless the new evidence would probably produce a different verdict, the judge, in the exercise of his discretion, may hear affidavits for and against the truth, of the alleged new facts, and for 'and against the credibility of the witnesses by whom it is proposed to establish them, and thus go to the bottom of the showing, so as to discover, if possible, how much of true substance there is in the alleged new matter.” This practice has been frequently recognized. Coast Line R. Co. v. Boston, 83 Ga. 387 (9 S. E. 1108); Jordan v. State, 120 Ga. 864 (48 S. E. 352). See also Fouracre v. State, 4 Ga. App. 692 (62 S. E. 116). On principle as well as authority, where a defendant convicted of a crime makes an extraordinary motion for a new trial, and presents to the trial court evidence which he claims is not only nеwly discovered but of a character which ‍​‌‌​‌‌​‌‌‌‌​​​​​‌‌​‌‌‌​​​​​​‌​‌‌​​‌​​​‌​​​​​‌‌‌​‍would probably produce a different' result on a new trial, we see no reason why the court should be-required to exclude light on those subjects and be prevented from, investigating whether the contention is meritorious or not.

Where one seeks to upset a verdict and obtain a new trial on the . ground of newly discovered evidence of witnesses, the statute re-. quires that he shall produce ’ affidavits as to their residence, associates, means of knowledge, character, and credibility. Civil Code (1910), § 6086. But where, on behalf of the State, affidavits are produced to rebut or attack those thus produced by the movant, there is no requirement that the makers of rebutting affidavits must be thus'sustained as a condition of admitting their affidavits. The burden is on the person who seeks to obtain the new trial to show that the newly discovered evidence would probably produce a dif*789ferent result, and for that purpose the new witnesses are required tо be sustained by evidence of the character mentioned. But no such burden rests on the State in rebutting the contention of the movant.

There is no statutory provision thаt the rebutting affidavits'of the State shall be served upon the movant or his counsel. The court may so regulate the hearing that no unfairness or injustice may be done. In thе ease at bar the presiding judge certified that he continued the hearing to enable the movant to meet the affidavits offered on behalf of the State, thus allowing time for that purpose:-:

Objection was also offered to another affidavit introduced on behalf of the State, because it contained .hearsay evidence. The presiding judge certified 'that he sustained the objection as to all of such affidavit which appeared to be hearsay.

Judgment affirmed.

All the Justices concur.