1. Though the evidence as to the fact of larceny by the accused, and also as to whether the scene of it was in Hancock county, was circumstantial, we think it was fully sufficient to warrant an affirmative finding on both questions, if the jury failed to credit the testimony in behalf of the accused, as they must have done in order to reach a verdict of guilty. Nothing but the newly discovered evidence is suggestive of any legal merit whatever in the motion for a new trial.
2. In consequence of the wide range of investigation and the thorough course of study into which the-writer was led by the exigencies of this one case, he feels prepared to produce a treatise on cumulative evidence, and yet he is quite unprepared for the minor and more moderate task of writing a judicial opinion on the subject. The exact truth is that, though he well knows what cumulative evidence is, he does not know what evidence is cumulative. He can define, but cannot distinguish. Of course, this statement is meant to be taken literally in rare instances only. Perhaps, in the great mass of instances, there is no real difficulty in discriminating evidence which is merely cumulative from that which is not so. According to many authorities, the newly discovered evidence in the present case was not cumulative, because it relates to specific facts touching which there was no evidence at the trial. Many other *367authorities would treat it as cumulative, because the new facts have no value except as tending to prove and establish the same identical defence which the accused set up at the trial, and touching which he not only adduced some evidence, but enough to clear him if the jury had given it credit. There is doubt, consequent, upon this conflict, and we are not sure how the doubt ought to be solved. Of one thing, however, we are morally certain, which is, that the new evidence would and ought to produce a verdict of acquittal if it is submitted to a jury and the jury believe it. ¥e are impressed with the belief, from the record as a whole, that this man is probably innocent, and that he ought to have the benefit of this new evidence. Using our power of direction, as was done in Mathews v. The State, 56 Ga. 469, we direct that the case be tried over.
Judgment reversed.
AI-generated responses must be verified and are not legal advice.
