Oglesbee v. State , 25 Ga. App. 750 ( 1920 )

Bloodworth, J.

(After stating the foregoing facts.) Motions for new trials on extraordinary grounds are not favored by the courts, 'and “ a stricter rule is applied to an extraordinary motion for new trial based on the ground of newly discovered evidence than to an ordinary motion on that ground.” Norman v. Goode, 121 Ga. 449, 455 (49 S.E. 268). Even in an ordinary motion for a new trial based upon newly discovered evidence it has been uniformly held that “though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial would not be granted.” Key v. State, 21 Ga. App. 795 (101 S.E. 917), and cases cited.

The only effect of the alleged newly discovered evidence in this, case would be to impeach the two witnesses who were sworn for the State at the trial. In addition to this, the alleged newly discovered evidence is of such a character that even if unattacked, it would hardly be -received as credible by the average juror. Before a new trial should be granted upon alleged newly discovered evidence it should be such as, if believed, would probably produce a different verdict upon another trial, such evidence as would be “decisive of the controversy.” It can hardly be insisted that the evidence of Geiger and Coley is of this character. Moreover, it is now the fixed law of this State that “ the extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs; as, when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character.” Rogers v. State, 18 Ga. App. 702 (90 S.E. 356), and cases cited. The motion under consideration does not come within this rule. The extraordinary motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, C.J., and Luke, J., concur.