8 S.E.2d 645 | Ga. | 1940
1. In this conviction for murder, with life imprisonment, the general grounds of the motion for new trial, being neither argued nor insisted upon, will be treated as abandoned.
2. The court did not err in refusing a continuance because of the absence of an alleged material witness for the defendant in support of his statement to the jury that he shot the deceased in self-defense, since it appears that a subpoena for the witness was not delivered to the sheriff until the day of the trial, although the defendant had full time and opportunity to procure the presence of the witness, and failed to show that he acted with due diligence. Glover v. State,
3. "Where a motion for new trial is based on the ground of newly discovered evidence, and there is a counter-showing, with conflicting evidence as to the truth of the alleged newly discovered facts, this court will not interefere with the grant or refusal of a new trial on that ground, unless there has manifestly been an abuse of the discretion which the law has vested in the trial judge, but not conferred on this court." Southwell v. State,
Judgment affirmed. All the Justicesconcur.
In the ground relating to the refusal of a continuance it appears that, before the trial on Tuesday, August 29, the defendant had told his attorney in July that he desired to have the absent witness subpoenaed, and expected to prove by the witness that just before the shooting the deceased made an assault upon him with a knife; that counsel for the defendant talked to the witness in the office of counsel on the Saturday preceding the trial, and the witness promised to be present on Monday to testify, but no further inquiry was made until Tuesday, the day of trial, when a subpoena was issued, and it was discovered that the witness had not been present either Monday or Tuesday; and that the subpoena could not be served before the beginning of the trial, because the witness was about fifteen miles distant on a visit to a sick relative. In notations by the judge it appears that in overruling the motion for continuance he stated to the defendant and counsel that an officer would be furnished and time allowed to get the witness before the case went to the jury; that later the judge again offered to give time to send for the witness, and to furnish an officer to go for him by automobile, "if you desire for him to be here as a witness," but "no request was made by counsel to send after the witness."
In the ground relating to alleged newly discovered evidence, the defendant produced an affidavit by a witness, who had not testified at the trial, to the effect that about two hours after the body of the deceased had been removed from the place where she was shot, this witness, accompanied by her husband and her mother, went out to this spot, and "in looking over the place where [the deceased] had fallen . . and lain," the witness found "the pocket-knife of [the deceased] with the large blade open and blood on said blade, said large blade being approximately three inches long," and also "found on said spot, in addition to the knife, the handkerchief of [the deceased] and a one-dollar bill wrapped up in said handkerchief;" these statements as to ownership by the deceased being supported by the statement that "affiant asked the daughter . . of said [deceased], `Is this your Mama's knife and handkerchief?' and said daughter . . stated, `Yes, that *164 is Mama's knife, handkerchief, and dollar bill.'" In the trial, this daughter testified that she herself had a knife tied up in a handkerchief at the scene of the homicide, but that the deceased had no knife or weapon of any kind. In the counter-showing by the State the daughter swore that the statements in the affidavits for the defendant were false; that she had no conversation with those witnesses with regard to any knife, handkerchief, or dollar bill; and that she had heard the main witness tell another that such witness know nothing about the killing. It also appeared that the main witness, although not testifying at the trial, had been present in court; and that the two witnesses, who gave affidavits to corroborate the main witness, her husband and mother, had testified. The former at the trial swore: "I didn't see any weapon, knife, pistol, or stick where [the deceased] was lying." The mother also swore: "I didn't see [the deceased] after she was wounded. I didn't go out there at all." A deputy sheriff, in a counter-affidavit, stated that the mother had told the solicitor-general that she had not gone to the scene of the shooting at all. The State contended that the defendant had full opportunity to cross-examine both the husband and mother of the alleged newly discovered witness, and to develop all the facts; and that if the defendant had wished to show by any eye-witness that he shot in self-defense, he could have offered the testimony of his brother, who was present; but no such testimony was offered.