9 Ga. App. 414 | Ga. Ct. App. | 1911
Lead Opinion
Howard Holton was indicted for murder, and was .found guilty of voluntary manslaughter. His motion for a new trial being overruled, the case is here for review.
The evidence as to what occurred outside is in conflict. The witnesses for the State testified that the decedent went out with his hands in his pocket, apparently making no demonstration to draw a weapon of any sort; that immediately after the door was closed they heard the voices of the two men angrily recurring to the incident of the game of crack-a-loo, the accused repeating the insinuation of unfairness in the play by the decedent, and the decedent denouncing the insinuation as a “damned lie,” and that this verbal dispute was followed immediately by five shots in rapid succession. The decedent, upon being shot, turned and endeavored to retrace his steps, and in a few seconds fell to the ground. The
There is evidence on both sides of this contention, and the jury were authorized to believe, oven from the State’s evidence, that the knife was in fact the knife of the decedent. There is no evidence to authorize the inference either that it was closed by the decedent after he was shot, or was closed by one of his friends; the onfy rational theory on this point being that the decedent had succeeded in taking his knife from his pocket, and before he had opened the blade one of the shots from the pistol of the accused struck the bone of .his right arm near the elbow, and the shock thereby produced caused the fingers to unclasp and the knife to fall to the ground. The testimony for the State fails to disclose the attitude of either man at the exact moment of the homicide. The last seen of the two men by these witnesses was when they were going outside, and the decedent then had his hands in his-pockets, and. the accused had not drawn his pistol, and the last words heard by the-witnesses were in an angry’conversation between the two, which was followed immediately by a rapid succession of shots, five in number. The decedent was hit three times, twice in the breast (the balls.going through 1ns body, one through his heart), and once in the elbow of his right arm. The other two bullets are not accounted for.
The statement of the accused and the testimony of his two- witnesses are in accord, and, if true, would make a case of self-defense. The jury, however, disregarded both the statement and the corroborative evidence, and accepted the theory of mutual combat as one of the theories arising from a consideration of the State’s evidence. This is, in substance, the material evidence both for the State and the defense. While the evidence for the State authorized the verdict, it did not demand it. It was shown that the decedent had his hand in his pocket when he left the shop and went into the rear yard, and it is also shown that he did in fact have a knife. The evidence for the State is silent as to what he was endeavoring to' do with the knife, or was apparently endeavoring to do with it, when he was shot; but the direction of the shots show that he was facing the accused, and the rapidity with which he was shot would warrant the inference that the accused felt the pressure of some emergency. As before intimated, it is clear that that shot which struck the arm of the decedent produced a shock which caused the hand to open spasmodically and the knife to drop. This is the theory of the physician, and it is the most rational theory. The shot evidently struck the arm before the decedent had time to open the knife. It does not appear what was the number of this shot. The writer of this opinion is not prepared to hold as a matter of law that a person who sees another advancing on him with a knife in his hand is compelled to wait until the blade is open before he would be authorized to defend himself. It would depend entirely upon the circumstances as they appeared to the person at the time he acted — the distance between the two, whether there was an apparent effort to open the blade, the size of the knife, and the character of the assailant. In other words, even from the evidence in behalf of the prosecution, the theory of self-defense is not entirely excluded as a rational hypothesis.
Now, in this situation let us briefly set out the testimony alleged to be newly discovered, in order that we may determine whether it .is material, and, if credited on a second trial, would probably lead to a different result. It may be stated that the statutory requirements as to preliminary proof in support of this ground of
The persons who make this affidavit are accredited by 16 citizens of the county as men of good character and worthy of belief, who frequently visit the town of Camilla and are well known to them. It will be seen that this testimony is in no sense cumulative. It certainly would be competent and admissible for the purpose of showing the quo animo of the decedent just before the homicide, and would be material, and would strengthen the defense relied upon. It would also strongly corroborate the testimony of the two negro witnesses, who were not believed by the jury on the trial (because they 'were impeached both by contradictory statements and by the fact that' one of them was the servant of the accused and the other related to that servant), and would also strongly corroborate the statement of the accused as to what did occur at the time of the shooting.
Another affidavit produced in support of this ground of the motion was made by one who stated therein that he witnessed the
This testimony would be of vital importance to the defense, and, if the jury believed it to be the truth of the transaction, it would probably cause a different result on a retrial, especially when considered in connection with the other alleged newly discovered testimony just considered, and also in connection with the testimony of the two witnesses for the defense and with the defendant’s statement, being strongly corroborative of both. It is in a sense cumulative, — that is, it is additional evidence to support the same facts which were set out on the trial. The rule is well established— indeed, it is the language of the statute of this State — that new trials should not be granted for evidence merely cumulative in character. The adverb “merely,” in the statute and in the decisions, as qualifying the character of the evidence, is significant. We apprehend that, if the newly discovered testimony as to some facts was that of a witness who was entitled to credit as against the testimony to the same point given by witnesses on the trial who were not entitled to credit or who had been impeached, the testimony would not be merely cumulative; for the additional fact of the character of the newly discovered witness would take it out of that category, at least to some extent, and it is easy to imagine cases in which a fact, although testified to by many witnesses on the previous trial, while not believed because of the character of the witnesses who testified to its existence, jut might be believed without hesitation if, on a second trial, it was testified to by only one witness of unquestioned and unimpeaclied veracity.
The State made a counter-showing as to the alleged testimony of this proposed witness. Affidavits are produced which attack the general character of the proposed witness, and affidavits are produced tending to show that he was not present and did not witness the difficulty, as he swears. But this affiant’s character is sustained
Courts are very reluctant to grant a new trial on the ground of newly discovered evidence, and we are aware of the well-settled rule that applications of this kind are necessarily directed largely to the discretion of the trial court, and great weight should be given to the judgment of that court with reference to them, and we thoroughly concur in the opinion universally expressed by courts as to the suspicious and unreliable character of applications for new trial on this ground. Public policy demands that when a case has once been fairly and fully tried, and a reasonable opportunity afforded both parties to present all their evidence, it should remain forever at repose. There are cases, however, in which great injus-' tice might result if a party should be. denied the benefit of newly discovered evidence. No fixed standard can be established for the measurement of every case, and no iron-bound, inflexible rule supplied, but each case must be governed by the circumstances surrounding it. After all has been' said and written on the subject, it seems to us that the true rule is this: If the evidence is in fact newly discovered, if it is material to the rights of the party making the application, and not merely cumulative, if he could not with reasonable diligence have discovered and produced it at the .trial, justice and the law demand another trial; for, if the newly discovered testimony is in fact material, it can only be material, because it would tend to strengthen the defense relied upon, and would therefore probably lead to a different result.
After giving this ground a most careful consideration, we are satisfied that it measures fully up to these essentials, and that the accused is entitled, under the law, as well as in furtherance of jus
Judgment reversed.
Dissenting Opinion
dissenting. I regret that I can not agree with my colleagues as to a reversal because of the newly discovered evidence. Personally my sympathies nearly always go out to the defendants in criminal cases, and they go out to this defendant; but as a judge I do not believe that I. can honestly say that the trial judge misjudged the importance of the alleged newly discovered testimony and abused his discretion in refusing a new trial. I am very reluctant to grant new trials for newly discovered evidence, unless it be of considerable importance.