Cox v. Hillyer

• Decision Date: 28 February 1880
• Citation: 65 Ga. 57
• Parties: Cox, relator. v. Hillyer, judge.
• Court: Georgia Supreme Court

65 Ga. 57

Cox, relator. v. Hillyer, judge.

Supreme Court of the State of Georgia

(February Term, 1880.)

Practice in the Superior Court. Practice in the Supreme Court. Mandamus. New trial. Before the Supreme Court. February Term, 1880.

Cox was tried for murder and convicted at the March term, 1879, of Fulton superior court. He moved for a new trial on various grounds, among others because the court refused to continue on account of the physical condition of defendant and popular excitement. The motion was overruled; defendant excepted, and the supreme court affirmed the judgment at the September term, 1879. When Fulton superior court met again in March, 1880, the defendant made another motion for new trial, which he alleged to be extraordinary. The grounds of this motion were, in brief, as follows:

(1.) Because of physical inability on the part of defendant to properly manage his case, and because of newly discoveredevidence to prove the same:

*(.) Because of newly discovered evidence of J. W. Murphy, a witness sworn on the trial of the case, that he had promised defendant on the day before the homicide to assist him and use his influence in making the trade between Alston, the deceased, and Walters, for the sale of General Gordon's interest in penitentiary company No. 2. The sale of this in terest was under discussion at the time of the homicide of Alston by Cox. Defendant explained his failure to remember this at the trial and first motion for a new trial on the ground of his physical condition.

(3.) Because of newly discovered evidence of Joseph Bennett, that he met Alston about half an hour before the homicide going towards the place where it occurred, and that Alston stated that he was going over to see Cox, and one of them would be dead before night.

The grounds were supported by various affidavits. The last two contain facts not proved at the trial, but which go to strengthen the evidence then introduced.

The court refused a rule nisi on this motion. Defendant's counsel tendered a bill of exceptions to the court, which he refused to sign, and they thereupon made this application for a mandamus.

D. P. Hill & Son; Gartrell & Wright; D. F. & W. R. Hammond; Candler & Thomson; R. S. Jefferies; J. A. Billups; W. R. Hodgson; L J Glenn & Son, for plaintiff in error.

B.H.Hill, Jr., solicitor-general; Hopkins & Glenn; Pat Calhoun; H. D. D. Twiggs; Hulsey & McAfee; Sam Hall, contra.

WARNER, Chief Justice.

This is an application to this court for a mandamus to require the judge of the superior court to sign and certify a second bill of exceptions for a new trial in the case of The State v. Edward Cox, who was tried and found guilty *of the offense of murder in Fulton superior court. It appears from the record that at the term of the court at which the defendant was tried, he made a motion for a new trial on the several grounds therein set forth, which was overruled, and the defendant excepted and brought the case to this court, which affirmed the judgment of the court below.

After the remittitur from this court had been filed in the clerk's office of the court below, but before it had been madethe judgment of that court by its order, the defendant made a second motion for a new trial upon the ground that it was "an extraordinary motion or case, " as provided for by the 3719th and 3721st sections of the Code. Upon the hearing of the second...