5 Ga. App. 76 | Ga. Ct. App. | 1908
The defendant in the court below was convicted of shooting at another. He filed a motion for new trial, upon general grounds, which was thereafter amended by the addition of a ground insisting upon newly discovered evidence. The motion for new trial was overruled, and he excepted. In the indictment, which was for an assault with intent to murder, it was alleged that the defendant shot one Albert Ball with a pistol. Upon the trial, witnesses swore that the defendant, Orr, not only shot at Albert Ball three times, and hit him in the leg, but that Ball was shot to the ground. The evidence also showed, that Orr and Albert Ball had a personal encounter prior to the shooting, and that Orr also had a difficulty with Bobert Ball, a brother of Albert Ball. This was the case on the part of the State. The defendant made a statement to the jury, in which he averred that he never shot at Albert Ball, though he admitted having a difficulty with Bobert Ball, and stated that he shot at Bobert Ball after Bobert shot at him.
If the case rested upon the general grounds alone, the decision of the judge of the superior court in refusing a new trial would have been right. We think, however, that the court erred in not granting a new trial upon the ground of newly discovered evidence. In support of this ground of the motion,' the movant produced the affidavit of Albert Ball, the person alleged to have been shot, in which he swore that not only had the defendant never shot at him, or shot him, but that, as a matter of fact, he had never been shot at in his life by any one. Two questions are to be considered in the determination of the sufficiency of the newly discovered evidence, as presented by the record. In the first place, should the motion have-been refused because the newly discovered evidence was merely cumulative and impeaching P Nothing is better settled, of course, than that in such a ease a new trial will not be granted. In the ease at bar, however, while the evidence was impeaching, so far as it related to the testimony in behalf of the State, delivered upon the trial, it was more than cumulative. If the witnesses had merely sworn that Henry Orr shot at Albert Ball, we might feel considerable reluctance in granting a new trial; because it would be possible for Albert Ball to have been shot at, if he was not hit, without being conscious of the fact. But the testimony in behalf of the State went further,
It was insisted, however, that the newly discovered evidence •did not authorize the grant of a new trial, because it could have been obtained before the trial, by the exercise of ordinary diligence. We concur in the proposition that a motion for a new trial, based npon the ground óf newly discovered evidence, should be refused, when it appears that, by ordinary diligence before the trial, the facts could have been ascertained; and we have had occasion •several times to advert to the fact that it is frequently remarkable how much of what could sooner have been ascertained can be discovered by the losing party after a verdict has been rendered against him; but whether ordinary diligence was exercised in a special ease is to be determined by the peculiar facts and circumstances of each particular case for itself. What might be ordinary diligence under a certain state of facts might fall far .short of it under different circumstances. In every case the exercise of ordinary diligence or its absence is to be determined by ■comparing the conduct under consideration with that of an ordinary man under similar circumstances; and indeed, in some •contingencies, inaction may be the result of circumstances such as would cause every other ordinary man likewise to be inactive. In
Judgment reversed.
