Turner v. State , 86 Ga. App. 373 ( 1952 )

Cáeosle, J.

Where, upon an extraordinary motion for a new trial in a criminal case, based solely on the ground of newly discovered evidence, the State makes a counter-showing, and the. trial court, as trior of the facts, is authorized to find from the affidavits and evidence submitted that the evidence was not newly discovered, but even if newly discovered, was merely impeaching in character, and there otherwise appears no abuse of the trial court’s discretion, its judgment denying the extraordinary motion will not be disturbed by this court on appeal. Burgess v. State, 93 Ga. 304 (20 S. E. 331); Taylor v. State, 77 Ga. App. 532 (48 S. E. 2d, 711), and cases cited.

Judgment affirmed.

Gardner, P.J., and Townsend, J., concur.

The State made a counter-showing on the extraordinary motion for a new trial and submitted the affidavits of W. A. Slaton, Mayor of Washington, Georgia, and Burch Weber, Chief of Police of that city, to the effect that, on the defendant’s appeal to the Mayor and Council of Washington from a conviction in the recorder’s court for disorderly conduct, growing out of the same transaction for which he was indicted for the assault with intent to rape, counsel for the defendant, who represented the defendant in both cases, asked the prosecutrix if she did not deny, on the night she made her complaint before Sheriff Lunceford and Theron Aldridge, that the defendant had put his hands on her, to which she replied that she did not remember what she told the officers; and to the effect that, on the trial of the defendant for assault with intent to rape, the same counsel argued to the jury that the prosecutrix had made conflicting statements, denying on the night of the alleged offense that the defendant had put his hands on her, and swearing on the trial that he had put his hands on her. The State also submitted a copy of the cross-examination of the prosecutrix by defendant’s counsel on the trial of the charge of assault with intent to rape, which, having been reported in Turner v. State, supra, will not be repeated here.