Burge v. State , 133 Ga. 431 ( 1909 )

Evans, P. J.

George E. Burge was convicted of the murder of his wife, Lovie Burge, and sentenced to be hanged. In his motion for a new trial he alleged that the verdict should be vacated and a new trial ordered, for the reasons, that the verdict was against the weight of the evidence and without evidence to support it; that certain evidence was illegally admitted; and because of newly discovered evidence. His motion was denied, and he excepts.

1. In the brief filed by the plaintiff in error no reference is made to the assignment of error relating to the alleged error in allowing certain testimony. This court has repeatedly ruled that the grounds of a motion for new trial not referred to in the brief of counsel for the plaintiff in error will be considered as abandoned. Holmes v. State, 131. Ga. 806 (63 S. E. 347).

2. The accused contends that he should be given another trial on account of newly discovered evidence. One of the witnesses whose testimony was relied on by the prosecution was Frank Brittain, the fifteen-year-old son of the deceased by a former marriage. In his motion for new trial the defendant says that since the trial he has discovered that R. M. Justice will testify that he was the first person to arrive at the scene of the killing and in a few minutes thereafter Frank Brittain told him that he did not know who killed his mother. He has also discovered since the trial that V. J. Palmer will testify that Frank Brittain worked under his superintendence at the blacksmith-shop of the Seaboard Air-Line Railway; that on the evening of the killing he passed the house of the deceased .and overheard the deceased quarrelling with her son, Frank Brittain, about his wages; that he heard Frank Brittain say, “If I don’t draw my own wages, I’ll be damned if I don’t hurt somebody;” to which the deceased replied, “I am going to draw your wages myself; and if you don’t go on to work and let me draw the wages, I will send you back to the reformatory,” when Frank Brittain said, “I’ll be damned if you draw my wages; I’ll kill somebody first.” No affidavits of Justice or Palmer are attached to the motion, nor does it appear therefrom how the .accused got his information that these persons would testify as he claims they would. In the case of Berry v. State, 10 Ga. 511, it was held that it is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court:

(1) that the evidence has come to his knowledge since the trial;

(2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. On the trial the State produced as witnesses Frank Brittain and his sister (who was thirteen years old), who testified that they were in the room at the time their mother was slain by the accused. They were corroborated in several important particulars by other witnesses. The effect of the newly discovered evidence tends only to impeach the credit of Frank Brittain. Moreover the accused states in his motion that Justice and Palmer reside at certain street numbers in the city of Atlanta. He does not exhibit their affidavits or allege any excuse for his failure to do so. He does not even state what reason he has to believe that these persons will testify as he claims. Newly discovered evidence as a ground for new trial is not favored by the law, and the movant should have produced the affidavits of Justice and Palmer or have assigned a reasonable excuse for their non-production. Sears v. Anderson, 12 Ga. 461.

3. We have carefully gone over the evidence and considered the criticisms upon its sufficiency as urged by counsel for the plaintiff in error in his brief, and have reached the conclusion that the evidence warrants the verdict.

Judgment affHa'med.

All the Justices concur.