114 Ga. 233 | Ga. | 1901
Gus Fellows was arraigned in the superior court of Jackson county, upon an indictment charging him with the offense -of rape. The jury returned a verdict of guilty, with a recommen
Such, in substance, was the statement of the accused. He gave the names of a number of people whom he had seen on the day of the crime, and without exception these witnesses corroborated his statement and established his alibi. With two exceptions, these witnesses were not in any way related t,ft the accused. Many of them had never seen him before the day on which the crime with which he is charged was committed, but were enabled, from one circumstance or another, to identify the accused as the man whom
The motion for new trial was upon the general grounds that the verdict was contrary to law and the evidence, and upon the further ground of newly discovered evidence. This evidence is outlined in an affidavit of R. R. Hitchcock, as follows: “ . . That on Wednesday, the 24th day of October, 1900, the day Miss Dola Hood is said to have been raped at a turnip-patch near the residence of Claud Scoggins, deponent saw the defendant, Gus Fellows, six miles south of Gainesville in Hall county, on the State road two miles above Sugar Hill P. 0., and about three hundred yards from Ellen Nail’s, and it was between nine and ten o’clock a. m. This was about twenty miles from Harmony Grove. On the same day, about four o’clock p. m., deponent met the defendant, Gus Fellows, with Gaines Johnson, something like 1 1/2 miles from Gainesville, south of Gainesville, and defendant was walking towards Gainesville. Deponent further swears that, about or between ten and eleven o’clock a. m. on the same day, he saw Amos Fuller and Homer Ogle on said road with a coffin in a wagon. Deponent is positive of the
The portion of the affidavit of Hitchcock in which he swears to having seen the accused about four o’clock in the afternoon on the day of the crime, in company with Gaines Johnson, was clearly cumulative, as Gaines Johnson himself testified that he was with the accused at the time and place mentioned; and it is also unnecessary to consider that portion which refers to the meeting of the deponent with Fuller and Ogle, as it merely corroborates testimony as to a particular fact to which other witnesses testified on the trial in the court below. But the first part of the affidavit, in which the deponent states that he saw the accused between nine and ten o’clock in the morning, presents a very different aspect. No witness on the trial testified to having seen the accused at that time and place. It is true that many witnesses gave testimony going to establish the defense of alibi, but each of these witnesses swore to a different fact or set of facts from that offered to be proved by the testimony of Hitchcock. For many reasons, which need not be here discussed, a jury might believe Hitchcock when they would not believe any of the other witnesses who testified to the ultimate fact of alibi. This evidence was clearly material to the issues in the case, and, if believed, ought to result in the acquittal of the accused. This case, we think, is directly controlled by the decision of this court in Dale v. State, 88 Ga. 552. In that case, as in this, the defense relied on was alibi, and, incidentally to that defense, a question arose as to the identity of the accused, who was indicted for bigamy as J. O. H. Nutall alias W. R. Dale, but who claimed that he and Nutall were entirely different persons, and that he had never borne the- name of Nutall. The accused was convicted, and
Applying this rule to the present case, we think it clear that the accused was entitled to a new trial on the ground of this newly discovered evidence; for while it tended to support the ultimate defense of alibi, to which many other witnesses had sworn on the trial, it was in no sense cumulative of any particular fact already proved, going to make up that defense. On the contrary, it is evidence of a new fact, to which no other witness had sworn. It located the accused at a different place and time from that testified to by any other witness, and to that extent was a separate and distinct alibi. While it harmonizes entirely with all the other evidence introduced in behalf of the accused, it might be true independently of the truth of that other evidence.
The principle of law here announced would of itself require the reversal of the judgment of the court below; but we take occasion to state in this connection that we the more readily give the case
Judgment reversed.