40 Ga. App. 91 | Ga. Ct. App. | 1929
1. Where a writ of error to review a final judgment in a criminal case lias been granted, and that judgment has been affirmed by this court, and subsequently a second bill of exceptions is tendered for the purpose of reviewing a judgment of the trial court upon an extraordinary motion for a new trial, and the judge refuses to sign it, this court will not grant a mandamus nisi, if it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the motion is without merit. Griffin v. Brand, 18 Ga. App. 641 (90 S. E. 90), and cit.
2. “After a person accused of crime has been convicted and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge; and his judgment in passing upon the motion will not be disturbed, unless it appears that his discretion is abused.” Griffin v. Brand, supra; Boatright v. Speer, 31 Ga. App. 194 (2) (120 S. E. 132).
3. In the instant case the extraordinary motion for a new trial was based solely upon alleged newly discovered evidence, and it appears, from an inspection of the petition for mandamus and the exhibits attached thereto, that the newly discovered evidence is largely cumulative and impeaching. It further appears, from the movant’s statement to the jury upon his trial, that a part of the alleged newly discovered evidence was known to him before the trial. Furthermore, the extraordinary
Mcmdamus nisi denied.
