Frank v. State

Decision Date14 October 1914
Docket Number18.
Citation83 S.E. 233,142 Ga. 617
PartiesFRANK v. STATE.
CourtGeorgia Supreme Court

Syllabus by the Court.

After a person accused of crime has been convicted, and a new trial has been denied him, and the judgment has been affirmed by this court, an extraordinary motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge (there being certain general rules as to evidence of particular kinds and as to diligence etc.); and a refusal to grant a new trial on such a motion will not be reversed, unless such discretion is abused.

In view of the nature of the alleged newly discovered evidence on the basis of which an extraordinary motion for a new trial was made in the present case, and of the strong countershowing made by the state in regard to it, there was no abuse of discretion on the part of the trial judge in refusing to grant a new trial; nor was there error in overruling the motion on any of the grounds set out therein.

Error from Superior Court, Fulton County; B. H. Hill, Judge.

Leo M Frank was convicted of murder, and, being denied a new trial brings error. Affirmed.

Rosser & Brandon, Reuben R. Arnold, Herbert J. Haas, Leonard Haas, and H. A. Alexander, all of Atlanta, for plaintiff in error.

Hugh M. Dorsey, Sol. Gen., and E. A. Stephens, both of Atlanta, and Warren Grice, Atty. Gen., for the State.


Leo M. Frank was indicted for the murder of Mary Phagan, and was found guilty. He moved for a new trial on numerous grounds. Among them was the ground that the verdict was contrary to law and the evidence, as well as attacks on various rulings of the trial court. This motion was heard by the judge before whom the trial took place. It invoked a decision from him, both as to whether he had committed any error of law which required a new trial, and also whether, in the exercise of a sound discretion under the facts of the case, he should grant a new trial. He overruled the motion for a new trial. The case was brought to the Supreme Court by a bill of exceptions, where the judgment was affirmed. 141 Ga. 243, 80 S.E. 1016. A rehearing in the Supreme Court was asked and denied.

After this, the defendant made what is termed an extraordinary motion for a new trial under Civil Code 1910, §§ 6089, 6092, based on the ground of newly discovered evidence. The first cited of these two sections declares that:

"All applications for a new trial, except in extraordinary cases, must be made during the term at which the trial was had," etc.

The latter of the two sections provides, among other things, that:

"Whenever a motion for a new trial shall have been made at the term of trial in any criminal case in this state, and overruled, or when a motion for a new trial has not been made at such term, in either event no motion for a new trial from the same verdict shall ever be made or received, unless the same be an extraordinary motion or case, such as is provided for in section 6089 of this Code." etc.

On the hearing of the application a number of affidavits were introduced for the purpose of sustaining the motion. On behalf of the state a vigorous countershowing was made. This extraordinary motion was heard before a different trial judge from the one who had previously overruled the first motion for a new trial. After hearing evidence on behalf of the movant and the state, the judge overruled the extraordinary...

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