8 Ga. App. 206 | Ga. Ct. App. | 1910
The defendant was adjudged guilty of assault and battery. According to the testimony of the prosecutrix, the judgment against him was authorized. The point is made that, after identifying the defendant, the prosecutrix did not thereafter testify that lie was the person who assaulted'her, because, as she was stooping down, she heard somebody behind her say, “What are you doing?” We think it quite evident from the context that though the prosecirtrix did not know, while her back was turned, who it was that spoke (and therefore, in the effort to represent her mental state or' her thought at that time, she used the word “somebody,” instead of naming the defendant), yet after she saw who it was, she knew it was the defendant, and, in using the words “he” and “him” thereafter, she plainly referred to the defendant. It is clear, from the evidence, that the parties were well acquainted with each other; and no effort was made, by cross-examination or otherwise, to show
Such a large number of witnesses testified to the bad character of the prosecutrix, and that they would not believe her on oath, that the trial judge would have been authorized to disregard her testimony entirely. But he was not required to do so, even if there had been no testimony (as there was in this case) tending to sustain her by proof of good character. The credibility of the witnesses addressed itself solely to the trial judge, and. the exercise of this right of selection is not reviewable. There is a vast difference between attempting to impeach a witness and actually destroying his testimony by successful impeachment. In the present case it is evident from the result that the witness was not impeached.
In support of one of the grounds of the motion for a new trial, Lambert presented the affidavits of several witnesses, who were properly vouched for, to the effect that he was one of the judges at 'a turkey shooting, at Simpson, from about one. o’clock until after four o’clock on the afternoon of December 31 (which was the afternoon on which the alleged assault was committed), and that he was not ’out of their presence during that time. Aside from the fact that the prosecutrix only stated the time of the occurrence approximately, as being about 3 o’clock, and therefore might have been mistaken about the time, and the further fact that, so far as appears from this record, the scene of the alleged offense may be near the point where the turkey shooting was' had, we can not say that the court erred in overruling this ground of the motion for a new trial, if the court reached the conclusion that the movant, by the exercise of ordinary diligence, could have adduced upon the trial the facts to which they bore witness by affidavits upon the hearing of the motion. It is significant that two of the witnesses who testified by affidavit upon the hearing of the motion for a new trial that the defendant was with them at the turkey shooting testified as witnesses at the trial. As they were with the defendant and he was in their presence at the turkey shooting, it seems to us that bjr merely asking the witnesses while they were on the stand the question as to the defendant’s whereabouts at the time of the alleged offense, the facts which are now alleged to be newly discovered could have been elicited. So far as appears, the defendant’s coun
Judgment affirmed.
