59 Ga. App. 456 | Ga. Ct. App. | 1939
On the original trial two witnesses, Bertie Wilbanks and Miss Molene McDonald Hayes, testified that the defendant shot the deceased, and on the hearing of the extraordinary motion for new trial the movant introduced the affidavits of both of these witnesses who swore that the defendant did not shoot as they had previously sworn, and that he had had nothing to do with the riot that went on when J. Kitchens was shot. The solicitor-general made a counter-showing, and introduced affidavits of these two witnesses, signed subsequently to the aforementioned affidavits, in which they stated that they did not understand what they were signing when they signed the former affidavits, and that what they testified on the trial was the truth. In such a situation it is quite evident that the law, relative to the extraordinary motion for new trial, must fix some tribunal who is to decide this question of fact as to which time the witnesses were testifying to the truth, and the law, in fixing this tribunal, places this duty upon the trial judge and says, “ ‘the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses and his discretion ‘in refusing a new trial on the ground of newly discovered evidence will not be controlled unless manifestly abused.” Bailey v. State, 47 Ga. App. 856 (1) (171 S. E. 874). In fixing one of the rules that should guide the judge in this matter, the legislature in 1833 enacted a law which is now codified in Code, § 110-706, as follows: “Any judgment, verdict, rule, or order of court, which may have been obtained or entered up, shall be set aside and be of no effect, if it shall appear that the same was entered up in consequence of corrupt and wilful perjury; and it shall be the duty of the court in which such verdict,
Counsel for the plaintiff in error, in his brief, states: “In the light of this testimony [that witnesses had made affidavits that they had testified falsely upon the trial], will this court stand helpless
This case is a very good illustration of the soundness of this rule. Two of the witnesses have sworn one way on the trial, after-wards they made affidavits that they swore falsely on the trial, and then made subsequent affidavits that the original affidavits were false and that the original testimony was true. In justice to the State and to the defendant, some tribunal must be designated to determine the truth or falsity of witnesses’ testimony. Thus we think that the rule laid down by the Court of Appeals, speaking through Judge Russell, in Morgan v. State, 16 Ga. App. 559 (85 S. E. 827), that “The credibility of the witnesses whose testimony (alleged to be newly discovered) constitutes the basis of an extraordinary motion for a new trial is a matter addressed exclusively to the trial judge, and it can not be said that in refusing a new trial in the present case the trial judge abused his discretion, since the strongest evidence adduced consisted of an affidavit of the prosecuting witness in which he asserted that his testimony on trial was false. Jordan v. State, 124 Ga. 417 (52 S. E. 768), and cases cited. A new trial should not be granted solely upon the ground that the accused was convicted upon false testimony, unless the falsity of the testimony has been established by a conviction for perjury of the witness delivering such testimony. Civil Code, §
Ed Nix having made an affidavit as to alleged newly discovered evidence, and also having made a second affidavit wherein the material statements made in the first were repudiated, the failure of the court to grant a new trial was not an abuse of discretion. See in this connection, Hall v. State, 117 Ga. 263 (43 S. E. 718). The other affidavit submitted in connection with the extraordinary motion, alleged facts which were merely cumulative. The judge did not abuse his discretion in finding that the newly discovered evidence was cumulative and would not probably produce a different verdict on a new trial.
Judgment affirmed.