124 Ga. 438 | Ga. | 1905
When counsel for the accused learned that the witness upon whose statement he relied in reference to the proof of' an alibi had misled him, he should have called the attention of the-court to the matter and made a motion for a postponement of the-case. As knowledge of this fact came to him pending the trial,, he could not take the chances of a favorable verdict, and, after an unfavorable verdict, insist upon a new trial being granted on account of a fact which came to his knowledge before verdict. In. Rolfe v. Rolfe, 10 Ga. 143, the evidence, which by oversight had not-been introduced, was offered pending the trial, and it was held that, under the circumstances it was error to reject the evidence, and a. new trial was granted on this ground. Even if the ruling laid down in the case of Wilson v. Brandon, 8 Ga. 136, is to be followed at all at the present time, the present case, upon its facts, is not. controlled by that ruling. In that case the motion for a new trial contained an affidavit of the absent witness that if present he would have testified to the fact which the plaintiff had failed to prove on account of being misled by the statement of another witness. That case should not be extended beyond its peculiar ¡facts.
Judgment affirmed.
