Hart v. State, (No. 17970.)

• Decision Date: 12 April 1927
• Docket Number: (No. 17970.)
• Parties: HART. v. STATE.
• Court: Georgia Court of Appeals

36 Ga.App. 673

137 S.E. 798

HART.

v.STATE.

(No. 17970.)

Court of Appeals of Georgia, Division No. 1.

April 12, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Bartow County; M. C. Tarver, Judge.

Charlie Hart was convicted of an offense, and he brings error. Affirmed.

J. R. Whitaker, of Cartersville, for plaintiff in error.

C. C. Pittman, Sol. Gen., of Cartersville, and J. C. Mitchell, Sol. Gen., of Dalton, for the State.

Syllabus Opinion by the Court.

LUKE, J. 1. The evidence in this case is entirely circumstantial, but it excludes every other reasonable hypothesis than that of the guilt, of the accused.

2. The ground of the motion for a new trial, based on alleged newly discovered evidence, 'is not considered: (1) Because the affidavits in support of the witnesses upon whose newly discovered evidence a new trial is sought fail to name any associate of such witnesses. Section 6086, Civ. Code 1910; Ivey v. State, 154 Ga. 63, 113 S. E. 175; Carpenter v. State, 35 Ga. App. 349, 133 S. E. 350. (2) Because the affidavit of the defendant and his counsel, seeking to show diligence, merely stated that they "did not know of the existence of the evidence of said witnesses * * * before the trial of said case, and that same could not have been discovered by the exercise of ordinary care, " this being a mere conclusion, without basic facts by which the court could judge whether or not they used due diligence, and whether or not the evidence could have been discovered before by the exercise of such diligence. Taylor v. State, 132 Ga. 235 (3), 63 S.E. 1116; Tyre v. State, 35 Ga. App. 579, 134 S. E. 178. Furthermore, the counter affidavit of the sheriff was that the said witnesses were under indictment for manufacturing liquor and were fugitives from justice.

3. In the absence of a timely written request for fuller instructions, the following charge of the court sufficiently informed the jury that the burden was on the state to prove the defendant guilty beyond a reasonable doubt:

"The law presumes him * * * to be innocent until the contrary appears by proof which satisfies your minds beyond reasonable doubt as to his guilt; a reasonable doubt being such a doubt as an honest juror would have in a search after the truth." Mathis v. State, 35 Ga. App. 583 (1), 134 S. E. 186.

Judgment affirmed.

BROYLES, C. J., and BLOODWORTH, J., concur.