65594 | Ga. Ct. App. | Feb 17, 1983
Defendant was convicted of aggravated assault upon the person of another with a certain screwdriver (a deadly weapon). Defendant’s motion for new trial was filed, heard and denied, and he appeals. Held:
The sole enumeration of error is based upon a ground of the defendant’s motion for new trial as to newly discovered and material evidence which would allegedly produce a verdict different from the conviction, an eyewitness having been allegedly found to the alleged altercation between the defendant and the victim. Defendant as movant contends this eyewitness was not available and whose whereabouts were unknown at the time of the trial. At the trial the victim’s girl friend testified that her brother (the alleged unavailable witness) was also present at the scene where the victim contends the defendant stabbed him with the screwdriver. It appears that at the motion for new trial hearing the defendant was knowledgeable as to the identity of this eyewitness, yet he did not exercise due diligence to locate him and no subpoena was issued for this witness to appear at the trial. Further, there was no attempt made to obtain a continuance of the case so that this witness could be located. The trial court did not err in denying the motion for new trial. Based upon the above facts, the defendant failed to satisfy the criteria with reference to newly discovered evidence as set forth in Bell v. State, 227 Ga. 800" date_filed="1971-07-09" court="Ga." case_name="Bell v. State">227 Ga. 800, 805 (183 SE2d 357). See also Hamilton v. State, 119 Ga. App. 196" date_filed="1969-01-24" court="Ga. Ct. App." case_name="Hamilton v. State">119 Ga. App. 196, 197 (2) (166 S.E.2d 735" date_filed="1969-01-24" court="Ga. Ct. App." case_name="Hamilton v. State">166 SE2d 735); Coalley v. State, 146 Ga. App. 526 (1) (246 SE2d 512).
Judgment affirmed.