1 Ga. App. 841 | Ga. Ct. App. | 1907
In the city court of Americus the defendant was convicted of the offense of shooting on a public highway. His motion for a new trial was overruled, and he excepts to that'judgment. The motion is upon the statutory grounds and also upon the extraordinary ground of newly-discovered evidence. Tfre
The plaintiff in -error further insists that he is entitled to a new trial upon the ground of newly discovered evidence. We have often marveled at the power of a verdict of guilty in quickening the thirst for an investigation and the faculty of discovery. But even if the newly-discovered evidence submitted in this case were produced before a jury, it could not produce a different result. The testimony of one of the witnesses is to the effect that he heard some unknown man say to the Mancy boys that he tried his best to get one of the Fergusons; and the affidavit of Simpkins is simply cumulative of testimony already adduced, that there were pistol shots, both preceding and following the report of the shotgun. If there is anything in this testimony it would tend only to set up the fact that the defendant fired in his own defense. And this testiinony would be impeaching, not only the State’s witnesses, but his own witnesses as well; and it does seem to us that if a new trial is not to be granted upon extraordinary .grounds when the newly discovered evidence merely impeaches the witnesses of the opposite party, it should much the less be granted when the newly-discovered evidence would impeach one’s own witnesses, for whose veracity he vouches. The only purpose of the newly-discovered evidence is to -establish self-defense in firing the gun. -The defendant and his witnesses say he did not fire at all.
Motions for new trial upon the extraordinary ground of newly-discovered evidence are not favored. If not regarded with suspicion, they should at least be granted with great caution. They should only be granted to avoid palpable injustice, and in order that the judgment set aside may perhaps be replaced by a different finding. We think there was no error in refusing to set aside the verdict and judgment in this case. Judgment affirmed.