128 Ga. 102 | Ga. | 1907
Lead Opinion
The defendant, Will Johnson, deposed by affidavit that he did not know of this evidence and could not have discovered it by the exercise of ordinary diligence. He further deposed as follows: “That being innocent of the crime with which he is charged, he had no personal knowledge of the date upon which or the time at. which the crime with which he is charged was actually committed;. that after his indictment he endeavored to refresh his recollection as to the 15th day of August, 1906, but on account of the lapse of time he had become confused and uncertain as to dates that long past, and he was unable to remember anything about that particular date or fix certainly in his -mind his whereabouts on said particular date, nor did he have any means of refreshing himself about said particular date; that his only knowledge of the time of the commission of the crime with which he is charged was his recollection of the time and circumstances under which he first heard of said crime; that he knew and was able to recall that he was at home sick on a certain day about the middle of August, and he remembered that on said day on which he was at home sick he then first heard .of the assault on Mrs. Hembree, and he thought the crime had been committed on the date that he had heard-of it, but he was unable to remember what day of the month he was at,
Newly-discovered evidence is not favored as a ground for granting a new trial. When a new trial is asked for on this ground it is incumbent on the movant to satisfy the court that the evidence has come to his knowledge since the trial; that it was owing to no want of diligence that it did not come sooner; that it is so material that it would probably produce a different verdict if the new trial be granted; that it is not cumulative, and is not of an impeaching character. Berry v. State, 10 Ga. 512; Civil Code, §§5480-1. Courts are not obliged to grant new trials on the ground of newly-discovered evidence, unless they are reasonably convinced that on another trial there would probably be a different verdict. Young v. State, 56 Ga. 403. Where the defendant has been given a fair trial and the verdict is supported by the evidence,'it should not lightly be set aside and a new trial ordered because of facts subsequently discovered which might possibly produce a different result. The reviewing court should give to the consideration of the evidence alleged to-have been newly discovered the most careful scrutiny, and, even if the utmost diligence has been shown, a new trial should not be granted on this ground unless the newly-discovered evidence raises a strong presumption that a different result would probably be readied upon a second trial. In some jurisdictions, where the defendant is permitted to testify in his own behalf, it has been held that a new trial should not be granted where the newly-discovered evidence is inconsistent with the testimony of the defendant on the former trial. People v. Hovey, 1. N. Y. Cr. R. 324; People v. McCauley, 45 Cal. 146. A .new trial will not usually be granted where the newly-discovered evidence supports a defense which is entirely different from or inconsistent with that interposed at the trial. 12 Cyc. 735. i! has been held that a new trial will not be granted upon newly-discovered evidence tending to establish the defendant’s insanity, where he set up a different defense on the trial. Cooper v. State, 120 Ind. 377; People v. Freeman, 28 Pae. Pep. 261. It is a sound rule which, prohibits a defendant from carving his defense into piecemeal and bringing in new defenses after verdict. The losing party, whether the case be civil or criminal, should never be allowed to trifle with the court by withholding one defense and relying upon it as a means of securing a new trial after
The defendant was put upon notice that the date of the alleged assault was August 15. This was the date alleged in the indictment and insisted upon by the prosecution on the trial. He offered evidence tending to establish an alibi on that day. There were several facts relied upon, both by him and his witnesses, to fix the date as Wednesday, August 15. After the-trial he makes the discovery that he was mistaken as to his whereabouts' on August 15, as stated on his trial, and attempts to show that he was in an entirely different place. His counsel show that they made an attempt at the office of the Southern Concrete Company to ascertain at what time he worked for that company during a period embracing the time the assault is alleged to have taken place. No reason is disclosed why the defendant should not have known his fellow laborers, and yet he made no effort to have them subpoenaed. It might be questionable whether he exercised proper diligence; but waiving the question of diligence, is the newly-discovered evidence so- convincing or conclusive in its nature, that a different result would probably be had if a new trial is granted? The witness by whom he expects to establish his new alibi relies upon contemporaneous entries in a book made by him, and from which he infers that the defendant was at work at the stables of the Southern Express Company at seven o’clock. He does not remember and does not undertake to swear positively that the defendant was at the stables as early as seven o’clock on the morning of the 15th of August. It is his inference, from entries on the time book, that because of -his superintendence of the hands and seeing that they were kept at work, and the work hours at that time were ten, beginning at six-thirty o’clock in the morning and closing at five o’clock in the afternoon, with half an hour intermission for dinner, the defendant began work at seven o’clock. The sub-foreman deposes that the stables were a forty-minutes walk from Battle Hill. The evidence on the trial discloses that Battle Hill was nearly three quarters of a mile from the place of the
Judgment affirmed.
Dissenting Opinion
I can not concur in a judgment of affirmance in this case. The record discloses the commission of one of the most atrocious crimes known to law. The fact that the crime was committed can not be doubted. The sole question at the trial was as to the identity of the perpetrator. Upon this question the prosecutrix testified that she could identify the accused as her assailant. Upon the question of identity all persons, even the most conscientious and scrupulous individuals, are sometimes mistaken. The accused stated that he was not at the scene of the crime, but was at home, a mile and a half distant, the entire day. The negro
According to the testimony the accused left his home a few minutes after six o’clock on the morning that the crime was committed, ■and the crime was committed one mile and a half from his home, about half past six o’clock. According to the testimony of the newly-discovered witness, the accused went to work at the stables of the express company, in the city of Atlanta, at seven o’clock ■on that morning. The record does not disclose the exact distance from the scene of the crime to the point at which the accused went to work, according to the testimony of this witness. It is evident from the record, however, that it was not less than one mile and three quarters nor more than two miles and a half. If the witnesses whose testimony refers to matters of time^were all réferring to standard time, then it is clear, from the record, that if the .accused went to work at the express company’s stables at seven ■o’clock he was there within twenty minutes after the crime was ■cgmmitted. If the newly-discovered witness is referring to standard time, as evidently he is, and the prosecutrix was referring to -sun time, then the time between the commission of the crime and the time that the accused reached the stables of the express company would be about forty-five minutes. It is more than probable that all of the witnesses were referring to standard time; for, while the prosecutrix did not live in the city of Atlanta, the farm upon
It is said, though, that the accused made a false statement at the trial as to where he was on that day. Whether this is willfully false or not no one can say. Arrested three months after the crime was committed, the fact that he may have made a mistake as to the date on which he was at home would not render his mistake different from similar mistakes that would be made by other persons under the same conditions. But suppose his statement is false, and suppose tEe testimony of the negro woman who corroborated him is perjured, these facts should not weigh in the balance when grave doubt as to his guilt of the crime charged is brought about by the newly-discovered evidence. He is not to be punished for the false statement at the trial. He is not to be punished for subornation of perjury, if he procured the negro woman to testify in his behalf. He is to be punished for rape, and only after the evidence of his guilt is such as to satisfy the mind of a reasonable man that he is guilty beyond all reasonable doubt. I do not think that counsel for the accused, who were appointed by the court to perform the duty of seeing that he was tried according to law, have been wanting in diligence. The record discloses that they were as diligent as possible under all of the circumstances of the ease. ' Counsel, although appointed by the court, went to work in good faith to see that the accused had a trial according'to law, and they deserve great credit for having performed this onerous, and no doubt unpleasant duty in an honest, conscientious, and diligent way, and not in the perfunctory way in which it is sometimes unfortunately performed in cases of this character.
I am aware of the rule that new trials upon the ground of newly-discovered evidence 'are not favored by the courts. I am also aware of the rule that the discretion of a trial judge, exercised in refusing to grant .a new trial on the ground of newly-discovered evidence, will rarely be controlled. But where the newly-discovered evidence is of a character like that involved in the present case, which not only brings to one’s mind the gravest doubt as to the correctness of the verdict under review, but also raises a probability that a different result might be reached on another trial if the witness is credited by the jury, I think it is my duty, as a Justice of this court, to render a judgment having the effect
This court has power, in a ease of this character, to prevent the taking of human life when there is a doubt as to whether that life has been forfeited under the law* With the greatest respect for the opinion of my brethren who constitute a majority of the court, and the learned and able judge who presided at the trial, I must dissent from an affirmance of -this judgment, for the reason that