69 Ga. 705 | Ga. | 1883
The only questions made and relied upon in this case for a revesal of the judgment of the court below, are, first, that persons serving on the jury of inquest are incompetent as grand jurors to serve in the finding of a bill of indictment ; and, second, because of the newly discovered evidence set out in the 4th ground of the motion for a new trial.
Judging from the affidavits of these two witnesses--which are always prepared as strongly as the affiants will allow— neither of them would swear that the knife was in deceased’s possession before the killing. One swears according “to the best of his knowledge and belief,” which words are inserted in the affidavit, that he believes he saw the knife about the middle of March preceding the homicide in the possession of the deceased ; the other that he saw the knife, or one precisely like it, in the possession of deceased about three weeks before he was killed.
When it is remembered- that the defendant justified himself upon the ground that the deceased was advancing upon him with his knife; that such fact was an all important one in his case ; that the knife was looked for at the time, but could not be found ; that this particular knife was not found until six or eight- weeks afterwards; that the finder swears upon the trial that he never spoke of the finding until the day before he was sworn in the case, as well as the fact that upon an examination for the knife at the inquest, some two hours after the death, deceased’s knife was found in his pantaloons pocket, makes, in our judgment, a case so questionable for the grant of a new trial, on the gronnd of newly discovered evidence, that we cannot say the judge abused his discretion in refusing it.
But when to this is added the fact that neither the defendant nor his counsel testify that they knew nothing of
Judgment affirmed.