Burge v. State

• Decision Date: 17 November 1909
• Parties: BURGE. v. STATE.
• Court: Georgia Supreme Court

(133 Ga. 431)

66 S.E. 243

BURGE.

v.STATE.

Supreme Court of Georgia.

Nov. 17, 1909.

1. Criminal Law (§ 1178^*)—Writ op Error —New Trial—Grounds—Abandonment.

Grounds of a motion for new trial, which are not referred to in the brief of the counsel for the plaintiff in error, will be considered as abandoned.

[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. § 3012; Dec. Dig. § 1178.*]

2. Criminal Law (§§ 941, 942, 945, 958*)— New Trial—Motion—Requisites.

Applications for new trial on the grounds of newly discovered evidence are not favored, and, before a new trial will be granted on this ground, the affidavits of the witnesses by whoni the new facts are to be proved should be produced, or satisfactory reasons given for their nonproduction; and it must also appear that the newly discovered evidence is not cumulative only, nor solely to impeach the credit of a witness, and that the probable effect thereof, if another trial be had, will be to produce a different verdict.

[Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 2324-2332, 2401; Dec. Dig. §§ 941, 942, 945, 958.*]

3. First Degree Murder—Evidence.

The evidence warranted the verdict, which has the approval of the trial judge.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; S. P. Gilbert, Judge.

George E. Burge was convicted of murder, and he brings error. Affirmed.

Clinton P. Thompson, for plaintiff in error.

C. D. Hill, Sol. Gen., Wm. M. Smith, Jno. C. Hart, Atty. Gen., and D. K. Johnston, for the State.

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 dis-covered evidence. One of the witnesses whose testimony was relied on by the prosecution was Frank Brittain, the 15 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 quarreling 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,...