Fellows v. State

• Decision Date: 16 November 1901
• Citation: 114 Ga. 233,39 S.E. 885
• Parties: FELLOWS. v. STATE.
• Court: Georgia Supreme Court

39 S.E. 885

114 Ga. 233

FELLOWS.

v.STATE.

Supreme Court of Georgia.

Nov. 16, 1901.

CRIMINAL, LAW—NEWLY-DISCOVERED EVIDENCE—CUMULATIVE EVIDENCE —NEW TRIAL.

1. Although newly-discovered evidence may tend to establish the truth of a material contention in direct support of which testimony was introduced at the trial, such evidence is not merely cumulative when it relates to a particular fact concerning which no witness had already testified. (a) Thus, where in a criminal trial the defense was alibi, and the accused introduced witnesses who testified that on the day of the commission of the crime they saw the accused in a county other than that in which it was perpetrated, he being on that day, according to the testimony of some of them, at one place in the county to which their testimony related, and according to the testimony of others of them at other places therein, and according to the testimony of all too far from the scene of the offense to have been possibly present at the time of its perpetration, newly-discovered testimony of still another witness, which placed the accused in the county where the other witnesses located him on the day in question at a different hour and place from any testified to by them, is not merely cumulative, though it, of course, tended, like the other tes timony, to establish the truth of the defense of alibi.

2. In a case of the nature above indicated, where at best the correctness of the verdict of guilty is to be most gravely doubted, and apparently there should have been a verdict of acquittal, a new trial should be granted upon such newly-discovered evidence, for under such circumstances it is most probable that upon another trial that evidence would, in connection with that which had been previously introduced, result in a verdict of not guilty.

3. Applying these rules to the present case, the court should have granted a new trial, for it appeared that there was no want of diligence in discovering the new evidence, which was of the character outlined above, and the showing made in respect thereto was in all respects legal and complete.

(Syllabus by the Court.)

Error from superior court, Jackson county; W. H. Felton, Jr., Judge.

Gus Fellows was convicted of crime, and brings error. Reversed.

J. A. B. Mahaffey and Shackelford & Shackelford, for plaintiff in error.

C. H. Brand, Sol. Gen., and W. W. Stark, for the State.

LEWIS, J. Gus Fellows was arraigned in the superior court of Jackson county upon an indictment charging him with the offense of rape. The jury returned a verdict of guilty, with a recommendation to mercy. The accused made a motion for a new trial, which was overruled, and he excepted.

The victim of the alleged rape was introduced in behalf of the state, and testified as to the details of the crime. She identified the accused, and swore positively that he was the man who committed the rape, which she said took place in the immediate vicinity of her home, near Harmony Grove, in Jackson county. The cross-examination of this witness tended to show that she was a person of little intelligence, education, or experience, but did not impeach her credibility. It was shown by other testimony, however, that shortly after the accused was apprehended she was taken to the jail in Athens, where he was then confined, for the purpose of identifying him; that she pointed out another negro, in no way connected with the crime, as her assailant, and, when confronted by the accused, stated positively that he was not the man who had committed the crime; and that it was only after the accused had, at the instance of others, put on a coat which it was supposed had been worn by the guilty man at the time the crime was committed, that she finally identified him. Opposed to this evidence, the accused made out by the testimony of unimpeached witnesses, most of whom were not related to him either by blood or friendship, an alibi which was perfect in every particular, which showed him to have been 18 or 20 miles away from the scene of the crime at the time of its commission, and which, if the witnesses were to be believed, rendered it impossible for him to have beenguilty of the offense as charged in the indictment. It is worthy of remark that, before any evidence tending to establish an alibi was introduced, the accused made his statement, in which he recounted in the minutest detail his whereabouts on the day the crime was committed; and this statement, in every essential particular, and in many of its trivial details, was completely corroborated by the witnesses who followed him. This statement was to the effect that the accused had had trouble with his wife a day or two previously to the day the crime was committed, and had beaten her; that, fearing that his wife would have him arrested, and get him into trouble, he decided to leave home, and visit the family of a relative, Ellen Nail, or Ellen Johnson (she seems from the record to have been called by both names), who lived about 18 miles distant in the adjoining county of Hall, near Gainesville; and that, in pursuance of this intention, he set out, early in the morning of the day the crime is alleged to have been committed, on the way to the home of this relative. In his hand he carried a small bundle containing sundry articles of clothing. He met several persons during the course of his journey, some of whom were known to him and some not. Part of the way he was allowed to ride in the rear of a wagon which overtook him on the road, and in this wagon were two men, —Amos Puller and Homer Ogle, —neither of whom had previously known the accused. Arrived at the home of Ellen Nail, he remained there until about 9 o'clock in the morning, when he went, in company with his cousin, Gaines Johnson, a son of Ellen, to the home of a Mr. Kilgore, near by, to see if he could get work. Kilgore was not at home, but his wife and son both saw the accused, and the former directed him to return when her husband was at home, as she did not know whether he wanted to employ any one or not. This was between 9 and 10 o'clock, and according to the testimony of the state's witnesses the crime took place at about 10 o'clock at a place about 18 miles distant from the home of the Kilgores, and in another county. The accused then...