Griffin v. Brand
| Decision Date | 30 September 1916 |
| Docket Number | 7847. |
| Citation | 90 S.E. 90,18 Ga.App. 641 |
| Parties | GRIFFIN v. BRAND, JUDGE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where there has already been one writ of error granted to a final judgment in a case, civil or criminal, and a second bill of exceptions is sought for the purpose of reviewing the judgment of the trial court upon an extraordinary motion for a new trial, and the trial judge refuses to sign it, this court will not grant the mandamus nisi, if it appears from an inspection of the petition for mandamus and the exhibits attached thereto that the motion is without merit. This is true whether the judgment complained of was the refusal of the judge to entertain the motion or the overruling of the motion after being entertained. Malone v. Hopkins, 49 Ga. 221; Seaboard Air Line Railway v. Reid, 6 Ga.App. 18, 63 S.E. 1130; Harris v. Roan, 119 Ga. 379, 46 S.E. 433; Cox v. Hillyer, 65 Ga. 57; Kelly v. Hall, 50 Ga. 636.
An extraordinary motion for a new trial based solely upon the ground of newly discovered evidence is without merit when it does not appear probable that such evidence would produce a different verdict upon another trial. Malone v. Hopkins supra; Hanye v. Candler, 99 Ga. 214, 25 S.E. 606; White v. Butt, 102 Ga. 552, 27 S.E. 680; Perry v. Candler, 102 Ga. 368, 30 S.E. 903; Cox v. Hillyer supra. The above ruling, however, applies to cases where the alleged newly discovered evidence bears upon the merits of the case. It is not strictly applicable to this case, for the reason that the newly discovered evidence here relates solely to the question of the alleged disqualification of some of the jurors who rendered the verdict against the defendant in the lower court, and does not touch the question of his guilt or innocence of the offense of which he was convicted. However, this newly discovered evidence (in the form of affidavits from various persons, submitted by the appellant) when viewed in the light of the countershowing made by the state (also in the shape of affidavits from the same persons who made the affidavits submitted by the appellant), did not in our opinion, show that the defendant did not have a fair or legal trial, and consequently does not require the grant of a new trial.
The judge who passed upon the extraordinary motion for a new trial (and who, by the way, was not the same judge before whom the defendant was convicted) did not err in refusing to give the defendant further time, at the hearing of the motion, to produce and examine in person the newly discovered witnesses whose affidavits had been used by both the defendant and the state on the hearing of the motion.
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, and his judgment in passing upon the motion will not be disturbed unless it appears that his discretion is abused. Frank v. State, 142 Ga 617, 83 S.E. 233; Brown v. State, 141 Ga. 783, 82 S.E. 238.
In this case the petitioner has been granted one writ of error from the final judgment against him in the lower court; and his extraordinary motion for a new trial is based solely upon the ground of newly discovered evidence, the evidence being that certain jurors in the case had, before the trial, expressed opinions which showed that they were biased against the defendant, and that certain other jurors were related within the prohibited degree to stockholders of the bank (the "wrecking" of which constituted the crime for which the defendant was convicted), and were thereby rendered incompetent to serve as jurors in the case. In regard to both of these...
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