Lynch v. State , 84 Ga. 726 ( 1890 )

Blandford, Justice.

The plaintiff in error was indicted for the offence of burglary, was found guilty by the jury and sentenced by the court below. He made a motion for a new trial, which was refused by the court, and he excepted.

1. As to the general grounds of the motion for a new trial, that the verdict is contrary to law and the evidence, we need only say that we have examined the testimony in the case, and that the verdict is in accordance with law and is supported by the evidence, as will be seen by reference to the report of the facts.

2. The only additional ground was the newly discovered evidence of one Sallie Elder, which, if adduced on the trial, would have been very material for the defendant, inasmuch as her affidavit shows that he was at Tallapoosa, Georgia, some twenty miles from Carroll-ton, the scene of the burglary, at the time it was alleged to have been committed. The defendant, if he was in Tallapoosa at the time the burglary was committed in Carrollton, certainly knew it at the time of the trial, and knew at whose "house he was stopping, and the slightest diligence on his part or that of his counsel might have procured the testimony of this witness. If he had been as diligent before his trial as he was afterwards, he would have had no right to complain of the absence of this witness who turned up so soon after the trial. It is very clear that there was want of diligence in procuring her testimony. We think the court was right to refuse a new trial. Judgment affirmed.