Coggeshall v. Park
| Decision Date | 22 March 1926 |
| Docket Number | 5352. |
| Citation | 132 S.E. 632,162 Ga. 78 |
| Parties | COGGESHALL et al. v. PARK, Judge. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Extraordinary motions for new trial are not favored.
Extraordinary motions for new trial within the statute are for causes out of the ordinary, in human affairs, as when one has been convicted of murder and it afterwards appears that the supposed victim is alive, or when one is convicted on testimony of witness subsequently found guilty of perjury in giving it.
To disqualify juror who tried case there should be affidavits of at least two witnesses as against juror's oath.
Alleged newly discovered evidence which, with ordinary diligence could have been discovered for use on trial is not ground for new trial.
Evidence merely cumulative is not ground for extraordinary motion for new trial.
Original mandamus will not issue to compel judge to certify bill of exceptions assigning error on refusal to entertain extraordinary motion for new trial, which is without merit.
Alleged newly discovered evidence to disqualify a juror in murder trial held to rest on a single affidavit, and therefore insufficient.
Alleged newly discovered evidence as ground for extraordinary motion for new trial held such as could have been discovered by ordinary diligence.
Where witness, on whose affidavit of newly discovered evidence new trial was sought, is dead, his affidavit cannot be used on another trial.
Alleged newly discovered evidence, merely cumulative to defense of alibi, held discoverable by ordinary diligence.
Notice required of extraordinary motion for new trial, required by Pen. Code 1910, § 1091, relates to time when party applies for rule absolute and is complied with when opposite party is served with copy of motion and rule nisi issuing thereon 20 days before time of hearing under rule nisi.
In extraordinary motion for new trial, rule nisi may be moved for without previous notice.
Original mandamus by T. L. Coggeshall and another to compel the judge of the superior court (James B. Park) to certify their bill of exceptions to review an order denying an extraordinary motion for new trial. Writ refused.
Allen & Pottle, of Milledgeville, and Branch & Howard, of Atlanta for plaintiff in error.
Syllabus OPINION.
1. Extraordinary motions for new trial are not favored. Perry v. State, 117 Ga. 719, 45 S.E. 77; Norman v. Goode, 121 Ga. 449, 40 S.E. 268; Burge v State, 133 Ga. 431, 66 S.E. 243; Bass v. State, 154 Ga. 112, 115, 113 S.E. 524.
2. The extraordinary motions for new trials contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Malone v. Hopkins, 49 Ga. 221; Cox v. Hillyer, 65 Ga. 57; Harris v. Roan, 119 Ga. 379, 46 S.E. 433; Wheeler v. State, 149 Ga. 473, 100 S.E. 568; Harris v. State, 150 Ga. 680, 682, 104 S.E. 902.
3. To disqualify a juror who tried the case and swore that he had not formed and expressed an opinion, and had no bias or prejudice, and was perfectly impartial, there should be the affidavits of at least two witnesses, or what is equivalent thereto, against such oath of the juror; otherwise it is but oath against oath, and the verdict will not be set aside on the ground of the incompetency of the juror. Epps v. State, 19 Ga. 102; Hudgins v. State, 61 Ga. 182; Dumas v. State, 63 Ga. 600; Fogarty v. State, 80 Ga. 450, 464, 5 S.E. 782; Myers v. State,
97 Ga. 76, 96, 25 S.E. 252; Sumner v. State, 109 Ga. 142(3), 34 S.E. 293; Turner v. State, 111 Ga. 217(2), 36 S.E. 686; Crawley v. State, 151 Ga. 818(2a), 108 S.E. 238, 18 A.L.R. 368. In Myers v. State, supra, this court said that the above rule "has now become established as one of the fixed rules of procedure of force in the courts of this state; and it rests on the theory that the oath of the juror, in response to the affidavit thus filed, or the oath of the juror in response to the questions propounded on the voir dire in which he qualifies himself, being opposed to that of the witness against him, it is a case of oath against oath, and the presumption in favor of the verdict is sufficient to turn the scale, or at least to sustain the exercise of a discretion by the presiding judge in upholding the verdict."
In Sumner v. State, supra, this court said:
4. Alleged newly discovered evidence, which by the exercise of ordinary diligence could have been discovered in time for use upon the trial of the defendants, furnishes no ground for the grant of a new trial. Bass v. State, supra.
5. New evidence, which is merely cumulative in character is not a ground for an extraordinary motion. To warrant a motion there would have to be some circumstance or fact of unusual character, not ordinary in its nature, that delayed or prevented the discovery of the evidence. Puryear v. State, 66 Ga. 753; Harris v. Roan, supra.
6. This court will not by mandamus compel a judge to certify a bill of exceptions assigning error upon his refusal to entertain an extraordinary motion for new trial and grant a rule nisi thereon, when it appears that such motion is without merit. Malone v. Hopkins, supra; Cox v. Hillyer, supra; Hanye v. Candler, 99 Ga. 214, 25 S.E. 606; Perry v. State, 102 Ga. 368, 30 S.E. 903; White v. Butt, 102 Ga. 552, 27 S.E. 680; Harris v. Roan, supra; S. A. L. Ry. v. Reid, 6 Ga.App. 18, 63 S.E. 1130.
7. Applying the above principles, the court...
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