1. “A new trial may be granted in all cases where 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.” Code, § 70-204. Under thеse provisions, newly discovered evidence that is merely impeaching in nature will not authorize a new trial, even though such evidence may relate to the only testimony on some vital point.
Arwood
v.
State,
59
Ga.
391;
Levining
v.
State,
13
Ga.
513;
Moreland
v.
State,
134
Ga.
268 (2) (
2. “Cumulative evidence” is loosely defined by the Code, § 38-102, as “that which is additionаl to other already obtained.” But the true test as to whether evidence is cumulative dеpends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different grade. It is only when newly discovered evidence either relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence, and afford basis for a new trial.
Brinson
v.
Faircloth,
82
Ga.
185, 187 (
3. All of the alleged newly discovered evidence was plainly either cumulative of the defendant’s previous testimony or impeaching of the State’s . testimony, except new evidence by one affiant that, just before this defendant shot, the deceasеd “ran his hand in his poeket.” This related to a fact as to which no witness testified at the trial, аnd the defendant in his statement to the jury said, “he started out with the pistol and I shot him,” and “I shot him to keеp him from killing me.”
(a)
However, even though it be. assumed that such newly discovered evidence rеlated to a material fact and was not merely cumulative or impeaching in chаracter, the defendant in his motion for new trial must show not merely that néither he nor his attorney knew of such evidence at the time of the trial, but must also show by facts the exercise of duе diligence on the part of both himself and his attorney, under which the new evidence was nоt and could not have been discovered. A recital, as in this case, that the new evidеnce was unknown to the defendant or his counsel before and at the time of the trial, and “could not have been discovered by the exercise of ordinary diligence,” is a “mеre opinion on their part, and [gives] no facts by which the court could judge of whether they had used due diligence or not, and whether the evidence could have been discovered before by such use.”
Taylor
v.
State,
132
Ga.
235 (3), 237 (
(b)
Moreover, in addition to the preceding requirements, newly discovered еvidence must be such as would probably cause a different verdict to be returned, if introduсed at another trial.
Mallory
v.
State,
56
Ga.
545 (2);
Cooper
v.
State,
91
Ga.
362 (2), 366 (
5. On tbe only remaining grounds, which are merely general, the evidence amply authorized the verdict.
Judgment affvrmed.