Fouraker v. State

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL
• Citation: Fouraker v. State, 4 Ga.App. 692, 62 S.E. 116 (Ga. App. 1908)
• Decision Date: 04 August 1908
• Docket Number: (No. 1,209.)
• Parties: FOURAKER. v. STATE.

62 S.E. 116

(4 Ga.App. 692)

FOURAKER.

v.STATE.

(No. 1, 209.)

Court of Appeals of Georgia.

Aug. 4, 1908.

1. Criminal Law — Appeal — Refusal of New Trial.

Where a ground of a motion for a new trial based on newly discovered evidence is filed, and a counter showing is made, so that a conflict arises as to the material facts upon which the ground is based, a reviewing court will not, except in a case of manifest abuse of discretion, reverse the finding of the trial judge.

(Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3067-3071.]

2. Same—Harmless Error.

The admission of testimony favorable to the defendant affords him no ground for a new trial.

3. Witnesses—Cross-Examination.

The trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court unless it is abused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 923-929.]

4. Same—New Trial.

Grounds of a motion for a new trial should be complete within themselves.

5. Homicide—Assault with Intent to Kill.

The evidence, though somewhat weak and circumstantial, is, legally speaking, sufficient to support the verdict.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 543-552.]

(Syllabus by the Court.)

Error from Superior Court, Clinch County; T. A. Parker, Judge.

Walter Fouraker was convicted of shooting, and brings error. Affirmed.

Townsend & Dame, for plaintiff in error.

John W. Bennett, Sol. Gen., for the State.

RUSSELL, J. The plaintiff in error excepts to the overruling of his motion for a new trial. The motion was based in part upon the ground of newly discovered evidence. One M. C. Kite swore, by affidavit, that, at the time of the shooting with which the defendant was charged, he was present and was looking at the defendant, and that the defendant was standing near a railroad crossing and within a few steps of him, and did not fire any shot or have any gun. The prosecutor was shot with a gun, and, consequently, the evidence of this witness would have been very material, and perhaps would have caused a different result, upon another trial of the case, if believed. There were, however, affidavits introduced in behalf of the state tending to show that the witness Kite was in a different town on the night of the shooting, and that therefore his testimony was false.

1. Upon the hearing of a motion for a new trial and in the consideration of a ground of the motion, dependent upon newly discovered evidence, where affidavits are introduced supporting and disputing the ground of the motion, the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses. A reviewing court will not in any such case control his discretion as to the comparative credibility of the witnesses who testified in support of the motion and those who swore to the contrary. We cannot therefore, in the present case, say that the trial judge erred in believing Sturges, Cribb, Johnson, and Tomlinson in preference to the witness Kite. As we cannot do this, we cannot hold that the court erred in overruling the ground of the motion based upon newly discovered evidence.

2. Even if the court should not have permitted the prosecutor's testimony with reference to what Swearingen said in apology to him, the error, if any, was harmless to the defendant. This testimony was: "I said: 'You just come in here and tell me that you are sorry for what you said, and just wait until you are sober, and there will be nothing of this. Go ahead and get sober.' He then turned around and said: 'You are right, I will go.' He then went off, both of them, and I did not see where they went." This evidence was objected to by counsel for the defendant, upon the ground that it was inadmissible and immaterial, and not connected with the assault for which the defendant was being prosecuted. We think that the evidence shows pretty clearly that the defendant and Swearingen were together from the beginning of the quarrel between the prosecutor (Allen) and Swearingen until after Swearingen was killed, and the entire difficulty may be considered as one transaction; but, even if this were not the case, in no event could the evidence above quoted, which tended to show that Swearingen was inclined to be pacified, injure the defendant.

3. The exception that the court...