State v. Malone

| Ga. | Jul 15, 1873

Warner, Chief Justice.

This is an application for a mandamus to compel the Judge of the Superior Court to sign and certify a bill of exceptions to the judgment of that Court in overruling a second motion for a new trial in the case of the State against Malone. The signing of the bill of exceptions would necessarily make it the duty of the Court to grant a supersedeas as to the execution of the judgment of the Court. It appears from the record that the defendant has been tried and found guilty of the offense of murder; that a motion was made for a new trial at the term of the Court at which the trial was had, which motion was overruled, and the defendant excepted, and prosecuted his writ of error to this Court, in which the judgment of the Court below was affirmed and the defendant sentenced to be executed, in accordance with that judgment of the Court. The defendant has now made a second motion for a new trial, and the question is, whether he has made such an “ extraordinary case” as will entitle him to be'heard a second time on that motion, under the laws of this State. By the 3668th . /* ji.„ . .i „ *i. •_ -j „_ i____xi. - a cc ~n ,. — .. i: _ secwoiL Oi tne Vy-ocit)? i& ucCia.i.6Ct Luetic an appiicauiuuo iui a new trial, except in extraordinary cases, must be made during the term at which the trial was had, but may be heard, determined and returned in vacation.” The 3670th section declares, “ in case of a motion for a new trial, made after the adjournment of the Court, some good reason must be shown why the motion was not made during the term, which shall be judged of by the Court. In all such cases, twenty days’ notice shall be given to the opposite party.” In this case the defendant did make a motion for a new trial at the term of the Court at which the trial was had, which has been overruled. To entitle the defendant to make a second motion for a new trial, after he has once been heard, will require such an extraordinary statement of facts, according to the repeated rulings of this Court, as would probably produce a different result if a new trial should be granted, and the extraordinary statement of facts relied on to produce that result must have been unknown to the defendant, or his counsel, at the time of the first motion, and could not have been ascertained by them in the exercise of proper diligence for that purpose. If the extraordinary facts now relied on for this second new trial were unknown to the defendant and his counsel at the time the first motion for a new trial was made, it is quite apparent they could have ascertained them by the exercise of proper diligence for that purpose; but it is not shown that his counsel did not know the facts at that time. Besides, it is not by any means probable that if a new trial should be granted, the extraordinary facts relied on would or ought to produce a different result as to the verdict. The eertainty of punishment of those who violate the criminal laws of the State is the only preventive of crime.

In our judgment, there are no extraordinary facts contained in the defendant’s second motion for a new trial which, under the laws of this State applicable thereto, entitle him to another hearing, either in the Court below or before this Court.

The application for mandamus is therefore refused.