31 S.E.2d 124 | Ga. Ct. App. | 1944
1. (a) It is not error on the hearing of an extraordinary motion for a new trial to admit, over objection, the record of the evidence taken at the trial, bearing upon the question to be decided. *385
(b) On the hearing of an extraordinary motion for a new trial it is not error for the court to allow, over objection, oral or parol testimony. Testimony in the form of affidavits or oral testimony may be received by the court in its discretion. It is the better practice for the judge in the order setting the hearing to state whether the testimony will be by affidavits or by parol, or both.
2. (a) Motions for new trial based on newly discovered evidence are not favored.
(b) Such motions are addressed to the sound discretion of the judge, and will not be disturbed unless there is a manifest abuse of discretion.
(c) When a counter-showing is made on an application for a new trial based on newly discovered evidence, the trial judge becomes the trier of the issue thus formed and his discretion is final and can not be controlled by this court unless there is a manifest abuse of discretion.
1. (a) In so far as the objection to the introduction of the record of the evidence adduced on the trial is concerned, we find no error. The only difference between an extraordinary motion for a new trial on newly discovered evidence, and a regular motion on that *386 ground, is the time of filing — the latter being filed during the term of the court at which the trial was had, and an extraordinary motion, after the term at which the trial was had. Code, §§ 70-301, 70-303. In each case both the trial court and this court are necessarily required to consider the alleged newly discovered evidence in the light of and in comparison with the evidence adduced at the trial, on which the conviction was based. This is true in order that the court may determine whether the alleged newly discovered evidence is merely cumulative or impeaching. So we see no injury done to the defendant in the instant case in allowing the introduction of the evidence adduced at the trial. Indeed, it would seem proper to do so in order that the court might have the whole record before it in passing upon the question presented. Of course we do not mean to say that portions of the evidence adduced at the trial unrelated to the question to be decided should be introduced. No doubt the trial judge will, in the exercise of his discretion, keep the record clear of this unnecessary incumbrance. There is no merit in this contention.
(b) The objection to the admission of oral testimony, over objection of the movant, is likewise without merit. The procedure with respect to extraordinary motions for new trial is similar to that with respect to applications for injunction, and the practice for obtaining testimony at a hearing on an extraordinary motion for a new trial is the same as at an interlocutory hearing on an application for injunction. Code § 38-2401. In Chattanooga Chicamauga Interurban Ry. Co. v. Morrison,
2. The issue involved in the motion in the instant case is based on the provisions of the Code § 70-204, which read as follows: "A new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him, and shall be brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial." It is well settled that newly discovered evidence is not favored as a ground for new trial. Young v. State,
In the instant case Pittman set forth in his affidavit that on numerous occasions prior to the date of the alleged seduction he had had intercourse with the female alleged to have been seduced. Both at the trial of the case and at the hearing on the extraordinary motion for a new trial the female testified that she had never had intercourse with any other man except the accused. In addition to this the State introduced evidence on the hearing of the extraordinary motion that the reputation of Pittman was bad, and that he was unworthy of belief. The judge passed on the credibility of these witnesses and resolved the issue against the movant. If, as the State's evidence tended to show, Pittman was unworthy of belief, we might very readily assume that a jury would not believe him on another trial. He sought in a general way to attack the chastity of the woman at the trial, and could produce no convincing evidence that she was not virtuous before the alleged seduction. This court has decided this question in a case the facts of which are almost on all fours with the case at bar. We refer to the case of Jackson v.State,
Counsel for the plaintiff in error cite several decisions which are claimed to be authority on which they base their contention for a reversal: Thomas v. State,
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.