24 Ga. 31 | Ga. | 1858
By the Court delivering the opinion.
The plaintiff in error, after conviction, moved in the Court below, for a new trial on three grounds :
1st. Because the verdict was contrary to law.
2d. Because the verdict was contrary to evidence.
3d. Because since his trial, the prisoner has discovered new and material evidence, which he did not know of at the trial, and which no effort on his part could have procured.
But the indictment in this case is substantially and almost litterally in accordance with the statute.
The harness had been deposited in the stable from which it was stolen on the third of July. On the morning of the fourth, it was gone, and on Sunday, a part of it was found in possession of the prisoner. It became his duty, then, to account for the possession, to repel the presumption of his guilt. His exculpatory statements at the time, that a part of it was found on him, and subsequently, were submitted to the jury. They were at liberty, according to the credit that they should think them entitled to, to give faith to them, or disregard them entirely. They did the latter, and were fully justified by his denial of all knowledgejpf a part of the harness, not on the horse when he was detected, and his almost immediately giving an order for it, to Larkin, in whose possession it was found.
The affidavit of William Clark, is entitled to more consideration. He states that he was in’ the bar-room of the prisoner on the night of the 3d of July, 1856, when a negro boy slave named Lloyd came in with a harness, which he said he loaned to prisoner to be used the next day. Witness left the State soon after, and returned on the Friday before he made the affidavit. The prisoner deposes that he had no knowledge that the persons making these affidavits could establish the facts sworn to by them until after his trial; and while it is apparent that, by the use of common diligence, he could have informed himself of the proof which could bé made by Larkin and Walsch, it does not appear that he could, by the use of any sort of diligence, have known that Clark knew the facts deposed to by him. He does not depose that Clark was in his bar-room on the night the harness was carried there, but to the statement of Clark that he was there. It is not probable that he could remember every person who passed in and oirt of a place of so frequent resort as that where the harness was carried. We will not undertake to pass upon the value of Clark’s evidence to the defence of the prisoner in another trial. It is apparently material to it, and the prisoner does not seem to have been guilty of negligence in not producing it on the former trial, and on that ground, therefore, the judgment of the Court below is reversed.
Judgment reversed-