The evidence was not so overwhelming as to be irresistible, but, taking into consideration the expression of regret
After-discovered evidence is one of the grounds of the motion for a new trial, but it is impossible to repel the belief that full and active diligence would have brought this testimony to light in ample time. The combat took place in a country village, on a day of public gathering, and in the presence of a multitude. Some of the bystanders are now for the first time ascertained to have been of the company, and what they can avouch is the new evidence. In preparing for trial, the accused ought to have inquired persistently, if he did not know, who were in the crowd. Finding some, from them he might have learned others, and from these others, and so on until he came to one or more that could give the true version of the fight. He, himself, knew what transpired in his justification, and all he wanted was some of the bystanders who understood the affair as he did. He seems to have staked his defense on the evidence which the state introduced, thus entitling his counsel to the conclusion in the argument, and having lost, entered afterwards on an active search after witnesses, conducting the search with excellent success. Too late, we think.
Cited by counsel: Sufficiency of evidence, 6 Ga., 276; 27 lb., 422; 37 lb., 607. Newly discovered, 33 lb., 28; 24 Ib., 32; 34 Ib., 1; 10 75., 512; 31 lb., 411; Code, §3716.
Judgment affirmed.