Cobb v. State, No. 22166
| Court | Georgia Supreme Court |
| Writing for the Court | MOBLEY |
| Citation | 219 Ga. 388,133 S.E.2d 596 |
| Parties | Preston COBB, Jr. v. The STATE. |
| Decision Date | 10 October 1963 |
| Docket Number | No. 22166 |
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v.
The STATE.
Rehearing Denied Nov. 7, 1963.
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Syllabus by the Court
The judgment of the trial court denying the extraordinary motion for new trial, as amended, is affirmed for the reasons stated in the opinion.
Preston Cobb was convicted, without recommendation, by a jury in Jasper County Superior Court on August 16, 1961, of the murder of Frank Coleman Dumas. His motion for new trial was denied, that judgment was affirmed by this court in Cobb v. State, 218 Ga. 10, 126 S.E.2d 231, and certiorari was denied by the Supreme Court of the United States in Cobb v. Georgia, 371 U.S. 948, 83 S.Ct. 499, 9 L.Ed.2d 497.
Thereafter, on March 19, 1963, the defendant filed an extraordinary motion for new trial on the ground of newly discovered evidence. After a hearing at which evidence was introduced by defendant in support
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of his motion, and by the State contrary thereto, the trial judge overruled the motion. The defendant excepted to this judgment and to a number of the court's rulings [219 Ga. 389] overruling objections to the admission of evidence offered by the State and sustaining the State's objections to the admission of certain of defendant's evidence.Donald L. Hollowell, Horace T. Ward, Howard Moore, Jr., Atlanta, for plaintiff in error.
Geo. D. Lawrence, Sol. Gen., Eatonton, Eugene Cook, Atty. Gen., G. Hughel Harrison, Asst. Atty. Gen., LeRoy C. Hobbs, Atlanta, for defendant in error.
MOBLEY, Justice.
1. a. The defendant offered as newly discovered evidence an affidavit of one Willie Jackson, dated April 2, 1963, who stated that on September 18, 1962, he was driving a truck which was involved in a collision with an automobile driven by Thomas Coleman Dumas, the son of Frank Coleman Dumas, the deceased; that Dumas was knocked out of his automobile and while he (Dumas) was lying on the ground he (Jackson) heard him say, 'G'd d'm it, G'd d'm it, I killed my Daddy, now I've gone and killed myself'; that at the time he appeared badly injured and in fear of dying. The statement was properly excluded from evidence by the trial judge. This court in Bryant v. State, 197 Ga. 641, 656, 30 S.E.2d 259, 269, held: 'It is a wellsettled principle of law in this State, that statements made by a third party to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. This principle has been applied where it was sought to introduce the confession of a third party one who was not accused of having any connection with the crime. Moughon v. State, 57 Ga. 102(3); Daniel v. State, 65 Ga. 199(1); Lowry v. State, 100 Ga. 574, 28 S.E. 419; Beach v. State, 138 Ga. 265(2), 75 S.E. 139; West v. State, 155 Ga. 482(1), 117 S.E. 380; Johnson v. State, 188 Ga. 662(1), 4 S.E.2d 813. The same principle has been applied to the admission of confessions by one who was jointly indicted with the accused. Lyon v. State, 22 Ga. 399(1); Kelly v. State, 82 Ga. 441(2), 9 S.E. 171; Robison v. State, 114 Ga. 445(2), 40 S.E. 253; Whitaker v. State, 159 Ga. 787(1), 127 S.E. 106; Parks v. State, 24 Ga.App. 243(1), 100 S.E. 724. The same rule has been followed where it was sought to procure a new trial on the ground of newly discovered evidence that another had confessed to the crime. Briscoe v. State, 95 Ga. 496, [219 Ga. 390] 20 S.E. 211; Hubbard v. State, 57 Ga.App. 856(2), 197 S.E. 64. And also where there was a motion to continue on account of the absence of a witness who would testify that one jointly indicted with the accused had confessed. Delk v. State, 99 Ga. 667(3), 26 S.E. 752.' The fact that the person who is alleged to have made the statement is since deceased does not render the declaration admissible. Green v. State, 153 Ga. 215(2), 111 S.E. 916. This court in a unanimous opinion in Bryant v. State, 197 Ga. 641, 657, 30 S.E.2d 259, 269, refused to overrule the foregoing ruling stating: 'This court declines so to do [overrule], as we consider this ruling sound, and in accordance with the overwhelming weight of authority on this subject. 20 Am.Jur. p. 428, § 495; 35 A.L.R. 441; 48 A.L.R. 348; 37 L.R.A.,N.S., 345; 16 C.J. 643, § 1278; Ann.Cas.1913E, 722.'
Further, the requirements of Code § 70-205 that 'When a motion for new trial is made on the ground of newly-discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence,' were not met for there is no such affidavit from the defendant or his trial attorney, Ben Warren.
There is no merit in defendant's contention that the requirement of Code § 70-205 that defendant and each of his counsel must not know of the existence of the evidence before the trial should not apply
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State v. O'Clair
...166 S.W. 582; Moya v. People, 1926, 79 Colo. 104, 244 P. 69; State v. Stallings, 1966, 154 Conn. 272, 224 A.2d 718; Cobb v. State, 1963, 219 Ga. 388, 133 S.E.2d 596; Siple v. State, 1900, 154 Ind. 647, 57 N.E. 544; State v. Bailey, 1906, 74 Kan. 873, 87 P. 189; Commonwealth v. Underwood, 19......
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Dean v. Bobbitt, CV 116-036
...be granted if the only effect of the evidence will be to impeach the credit of a witness." (Doc. no. 10-11, p. 84 (citing Cobb v. State, 133 S.E.2d 596 (Ga. 1963)); see also Davis v. State, 660 S.E.2d 354 (Ga. 2008). As the trial court explained, recantation constitutes mere impeachment of ......
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Bell v. State, No. 26576
...interests, hence more credible). The trial judge based his overruling of the motion for a new trial in part on the case of Cobb v. State, 219 Ga. 388, 133 S.E.2d 596, which case cites a number of cases to the effect that newly discovered evidence that another person has confessed that he an......
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Cobb v. Balkcom, No. 21085.
...evidence was filed on behalf of Cobb, and the denial of the motion by the trial court was affirmed on appeal. Cobb v. State, 1963, 219 Ga. 388, 133 S.E.2d The petition for writ of habeas corpus which is the subject matter of this appeal was then filed in the District Court. It presented the......
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State v. O'Clair
...166 S.W. 582; Moya v. People, 1926, 79 Colo. 104, 244 P. 69; State v. Stallings, 1966, 154 Conn. 272, 224 A.2d 718; Cobb v. State, 1963, 219 Ga. 388, 133 S.E.2d 596; Siple v. State, 1900, 154 Ind. 647, 57 N.E. 544; State v. Bailey, 1906, 74 Kan. 873, 87 P. 189; Commonwealth v. Underwood, 19......
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Dean v. Bobbitt, CV 116-036
...be granted if the only effect of the evidence will be to impeach the credit of a witness." (Doc. no. 10-11, p. 84 (citing Cobb v. State, 133 S.E.2d 596 (Ga. 1963)); see also Davis v. State, 660 S.E.2d 354 (Ga. 2008). As the trial court explained, recantation constitutes mere impeachment of ......
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Bell v. State, No. 26576
...interests, hence more credible). The trial judge based his overruling of the motion for a new trial in part on the case of Cobb v. State, 219 Ga. 388, 133 S.E.2d 596, which case cites a number of cases to the effect that newly discovered evidence that another person has confessed that he an......
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Cobb v. Balkcom, No. 21085.
...evidence was filed on behalf of Cobb, and the denial of the motion by the trial court was affirmed on appeal. Cobb v. State, 1963, 219 Ga. 388, 133 S.E.2d The petition for writ of habeas corpus which is the subject matter of this appeal was then filed in the District Court. It presented the......