Avery v. State
| Decision Date | 06 August 1912 |
| Docket Number | 4,280. |
| Parties | AVERY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A ground of a motion for new trial, based upon alleged newly discovered evidence, need not be formally approved by the trial judge in the sense that the recitals of fact contained in the affidavits offered in support of the ground are verified as true. The reviewing court will pass upon a ground of the motion for new trial, based upon alleged newly discovered evidence, if it appears that this ground was presented to and considered by the trial judge, and that the affidavits offered in support thereof were likewise considered by the judge. Where, however, the record discloses that the trial judge refused to approve such a ground of a motion for a new trial, and nothing more appears, it will be presumed that for some good and sufficient reason the trial judge refused to consider the ground of the motion, and the evidence offered in support thereof.
A ground of a motion for new trial, based upon alleged newly discovered evidence which is impeaching in its nature, presents no sufficient reason for granting a new trial, and especially is this true where the impeaching evidence relates to proof of a specific act tending to show the bad character of a witness, evidence of which would not be admissible even if a new trial should be granted.
The evidence supports the verdict.
Error from Superior Court, Cobb County; N. A. Morris, Judge.
L. C. Avery was convicted of crime, and brings error. Affirmed.
Mozley & Moss, of Marietta, for plaintiff in error.
J. P. Brooke, Sol. Gen., of Alpharetta, for the State.
Judgment affirmed.
RUSSELL, J., absent because of sickness.
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