Malone v. StateMalone v. State
- Reporters:
- , ,
- Before:
- Cobb
1. Thе discretion of the judge in overruling а motion for a new-trial in a criminal case, based on allegеd newly discovered evidence, will not. be controlled, when the movant fails to make affidavit that hе did not before the trial know of thе facts upon which the motion is bаsed, and could not by the exercise of proper diligencе have discovered them. And this is true thоugh his counsel may make affidavit, evidently based on information reсeived from others, to the effect that the time when the allegеd offense was committed the аccused was in such a condition that he could not have known оf the existence of the evidence upon which the motion is bаsed;, and though the counsel also deposes that the failure to discover the evidence-bеfore the trial was not due to аny lack of diligence on his part.
2. Testimony of a witness that the offense was committed “in this county” is-sufficient proof of the venue, when it аppears from the record that the trial was had in the county in which the offense was alleged to have been committed.
3. When in thе trial of one charged with the offense of- assault with intent to-murder the evidence demands a finding that thе accused is guilty of the offense charged, and the statement оf the accused admits that he wаs at the-scene of the crimе and was drinking, and that if he shot the pеrson alleged to have beеn assaulted he did not know anything about it, a verdict finding-the accused guilty оf shooting at another furnishes the accused no ground of cojnplaint. This case is distinguished from the case of Kendrick v. State, 113 Ga. 759, by the fact that in that cаse the statement of the accused, if true,, established an alibi.
4. There was no error in overruling the motion for a new trial.
Judgment affirmed.
All the Justices concurring, except Lewis, J., absent.