4 Ga. App. 692 | Ga. Ct. App. | 1908
The plaintiff in error excepts to the overruling of his motion for new trial. The motion was based in part upon the ground of newly discovered evidence. One M. C. Kite swore, by affidavit, that at the time of the shooting with which the defendant was charged, he was present and was looking at the defendant, and that the defendant was standing near a railroad crossing and within a few steps of him, and did not fire any shot or have any gun. The prosecutor was shot with a gun, and consequently the evidence of this witness would have been very material, and perhaps would have caused a different result upon another trial of the case, if believed. There were, however, affidavits introduced in behalf of the State, tending to show that the witness Kite was in a different town on the night of the shooting, and that therefore his testimony was false.
The evidence being circumstantial, the jury might have been authorized to acquit the defendant, if the evidence had pointed to any one other than this defendant as the man who fired the shot; but in our opinion the jury could not reasonably entertain any other supposition than that the defendant was the person who shot Allen, nor were they authorized, under the law, to find this
So far as the absence of the defendant during the trial is concerned, the point is not properly presented- for our consideration. It is not made one of the grounds of the motion for new trial,, and the only reference to the subject is in the brief of evidence,, of which it forms no proper part. Judgment affirmed.