Fulford v. State, 23822

• Decision Date: 05 January 1967
• Docket Number: No. 23822,23822
• Citation: 222 Ga. 846,152 S.E.2d 845
• Court: Georgia Supreme Court
• Parties: John C. FULFORD v. The STATE.

Page 845

152 S.E.2d 845

222 Ga. 846

John C. FULFORD v. The STATE.

No. 23822.

Supreme Court of Georgia.

Jan. 5, 1967.

William T. Brooks, Atlanta, John C. Fulford, pro se, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, Amber W. Anderson, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., John A. Sligh, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

MOBLEY, Justice.

The appellant, John C. Fulford, was convicted in Fulton Superior Court of robbery by use of an offensive weapon and sentenced to 10 years in prison. His motion for new trial was denied by the trial court and on appeal to this court was affirmed. Fulford v. State, 221 Ga. 257, 144 S.E.2d 370. He thereafter mailed to the trial judge an extraordinary motion to vacate and set aside the judgment and sentence on the ground of newly discovered evidence and attached to his motion an affidavit of a fellow prisoner, who was serving a sentence for robbery in which he stated that he committed the robbery for which appellant was serving and that appellant did not participate therein. The trial court entered an order refusing to issue a rule nisi to show cause why the motion should not be granted, reciting therein that after investigation of the credibility of the affiant he reached the opinion that said affiant is not worthy of belief. The court ordered that the motion and his order thereon be filed with the clerk of the superior court and a copy mailed to appellant. Thereafter, on request of the appellant, the court appointed counsel to represent him in appealing his case to this court, who filed this appeal for him. Held:

The motion is in reality an extraordinary motion for new trial based on newly discovered evidence. Code § 70-303; Cox v. Hillyer, 65 Ga. 57; King v. State, 174 Ga. 432(1), 163 S.E. 168. The trial judge, in passing upon the motion, is vested with wide discretion, and his judgment thereon will not be disturbed unless an abuse of discretion is clear. Fields v. State, 212 Ga. 652, 94 S.E.2d 694; Loughridge v. State, 202 Ga. 129, 130, 42 S.E.2d 473.

'When an alleged extraordinary motion for new trial is entirely without merit, it is proper for the judge to decline to entertain the same, and to refuse to grant a rule nisi thereon.' Harris v. Roan, 119 Ga. 379(5), 46 S.E. 433; Cox v. State, 19 Ga.App. 283(2), 91 S.E. 422; Loomis v. Edwards, 80 Ga.App. 396, 56 S.E.2d 183. Where, as here, the sole ground for the extraordinary motion for new trial is the statement of another prisoner that he committed the crime for which the appellant was convicted and that appellant did not participate therein, the motion is entirely without merit, for if a new trial were granted, the confession of the third party would not be admissible evidence. See Bryant v. State, 197 Ga. 641, 656, 30 S.E.2d 259, 269, where this court held: 'It is a well settled principle of law in this state, that statements made by another party to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. This principle has been applied where it was sought to introduce the confession of a third party who was not accused of having any connection with the crime. Moughon v. State, 57 Ga. 102(3); Daniel v. State, 65 Ga. 199(1); Lowry v. State, 100 Ga. 574, 28 S.E. 419; Beach v. State, 138 Ga. 265(2), 75 S.E. 139; West v. State, 155 Ga. 482(1), 117 S.E. 380; Johnson v. State, 188 Ga. 662(1), 4 S.E.2d 813.' This court in Bryant v. State, supra, 197 Ga. at p. 657, 30 S.E.2d at p. 269, refused to overrule the foregoing ruling saying: 'This court declines to do so (overrule), as we consider this ruling sound, and in accordance with the overwhelming weight of authority on this subject. 20 Am.Jur. 428, § 495; Hines v. Commonwealth, 136 Va. 728, 117 S.E....