54 S.E.2d 350 | Ga. | 1949
Even though a conviction for crime, procured by perjured evidence and known to be such by the State's prosecuting attorneys, amounts to a denial of due process of law required by the State and Federal constitutions, yet the Code, § 110-706, which authorizes a new trial when a conviction is based upon perjury and requires that proof of such perjury be made by a judgment of conviction, is not unconstitutional in that it denies due process and equal protection of the law. That section is in harmony with the purest sources of evidence rule declared in the Code, § 38-101, and the ground of the extraordinary motion for new trial based upon newly discovered evidence, alleging perjury of the principal witness for the State, not having been supported by proof of a conviction for perjury, the court did not err in overruling the motion.
Before deciding this question, however, we wish to put at rest another argument made in favor of affirmance, which is that, irrespective of the validity of Code § 110-706, the newly discovered evidence, being merely impeaching in character, the judgment overruling the motion based thereon was demanded under the Code § 70-204, and numerous decisions of this court holding that newly discovered evidence merely impeaching in character would not authorize the grant of a new trial. The fatal weakness of this argument lies in the fact that the evidence here is not merely impeaching in character, but has probative force, in that it shows a state of facts which differ from that to which the perjured witness testified upon the trial, and in addition makes serious charges against the prosecuting attorneys. In 39 Am. Jur. 174, § 160, it is said: "A distinction is to be drawn between evidence which impeaches a witness, in the sense that it affects the witness's credibility, and evidence which has *659
probative force, in that it shows a state of facts which differs from that to which the witness testified." It was held by the Supreme Court of the United States in Mooney v. Holohan,
Judgment affirmed. All the Justices concur. Atkinson, P. J.,and Wyatt, J., concur in the judgment only. *661