Herrin v. State
| Decision Date | 14 July 1944 |
| Docket Number | 30544. |
| Citation | 31 S.E.2d 124,71 Ga.App. 384 |
| Parties | HERRIN v. STATE. |
| Court | Georgia Court of Appeals |
This case is here because of exceptions to the overruling of an extraordinary motion for new trial on the ground of newly discovered evidence. A conviction of the defendant for seduction was affirmed by this court on January 5, 1944. See Herrin v. State, 70 Ga.App. 485, 28 S.E.2d 587. The alleged newly discovered evidence is based on an affidavit of Everett Pittman, properly accompanied by the required supporting affidavits. The gist of the Pittman affidavit is that prior to the time that the female was alleged to have been seduced he had intercourse with her on numerous occasions. The State made a counter showing. The trial judge set a date for the hearing of the issue thus formed on this extraordinary motion for a new trial. At the hearing the movant introduced the Pittman affidavit, together with the supporting affidavits. The State introduced the evidence at the trial and several affidavits, and also parol or oral testimony. The movant objected to the introduction of the evidence adduced at the former trial of the case, and also objected to the introduction of any parol or oral testimony. The judge overruled these objections. After hearing, the trial judge overruled the motion.
W V. Lance and Bill Lance, both of Gainesville, for plaintiff in error.
G Fred Kelley, Sol. Gen., of Gainesville, John L. Perkins, of Cornelia, and John E. Frankum, of Clarkesville, for defendant in error.
1. (a) In so far as the objection to the introduction of the record of the evidence on the former trial is concerned, we find no error. The only difference in the effect of an extraordinary motion for a new trial on newly discovered evidence, and this ground in a regular motion for a new trial, is the time of filing, the latter being filed during the term of court the conviction was had, and the extraordinary motion afterwards. In every instance both the trial court and this court are necessarily required to consider the alleged newly discovered evidence in the light of and in comparison with the evidence adduced at the trial, and on which the conviction is based. This is true in order that the court may determine whether the alleged newly discovered evidence is merely cumulative or impeaching. So we see no injury done to the defendant in the instant case in allowing the introduction of the evidence adduced at the trial. Indeed, it would seem proper to do so in order that the court might have the whole record before it in passing upon the question presented. Of course we do not mean to say that portions of the evidence of the former trial unrelated to the question to be decided should be introduced. No doubt the trial judge will, in the exercise of his discretion, keep the record clear from this unnecessary incumbrance. There is no merit in this contention.
(b) The objection to the admission of oral or parol testimony over objection of plaintiff, is likewise without merit. The procedure in an extraordinary motion for a new trial is similar to that in an application for injunction, and the practice for obtaining testimony at a hearing on an extraordinary motion for a new trial is the same as an interlocutory hearing on an application for injunction. Code § 38-2401. In Chattanooga & C. I. R. Co. v. Morrison, 140 Ga. 769(3), 773, 79 S.E. 903, 905, the Supreme Court said "Generally such hearings have been by affidavits.
But there is no inviolable sanctity about an affidavit as against oral evidence. It is a matter of practice. And where the witnesses are present, at least, and not objecting, we think the presiding judge has a discretion as to whether he will hear affidavits or oral testimony. Indeed every one who has presided as a judge on the circuit bench will doubtless recognize the fact that not infrequently the truth can be reached by a few pertinent questions, though it may be beclouded and obscured in pages of carefully prepared affidavits. It requires more time to hear oral evidence; but it is more important to learn the truth than to save time. Of course the power should be justly used so as not to entrap or work a hardship upon either party. Justice is the object to be obtained, and it should be reached by just means."
2. The issue involved in the motion in the instant case is based on the provisions of the Code, § 70-204, which reads as follows: "A new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him, and shall be brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial." It is well settled that a motion for a new trial based on newly discovered evidence is not favored. Tolie v. State, 184 Ga. 518, 192 S.E. 35; McCoy v. State, 191 Ga. 516(5), 13 S.E.2d 183; Kimball v. State, 63 Ga.App. 183(16), 10 S.E.2d 240; Landers v. State, 68 Ga.App. 804, 24 S.E.2d 139. And is addressed to the sound discretion of the trial judge and will not be disturbed unless his judgment is manifestly abused. Tolie v. State, supra; Taylor v. State, 60 Ga.App. 594, 4 S.E.2d 484; Kimball v. State, supra; Brand v. Lawrenceville, 64 Ga.App. 357, 359, 13 S.E.2d 214.
In a motion for a new trial based on newly discovered evidence the trial judge becomes the trior of that issue. As to the exercise of his discretion in passing upon the issue formed by the...
To continue reading
Request your trial
-
Castell v. State
...It has been held that on motion for new trial, the court has the discretion to hear affidavits or oral testimony. Herrin v. State, 71 Ga.App. 384(1), 31 S.E.2d 24 (1944). See also, Chattanooga, etc., R. Co. v. Morrison, 140 Ga. 769, 773-774(3), 79 S.E. 903 (1913). This discretion, however, ......
-
Bowman v. State
...to the sound discretion of the court and will not be disturbed unless there was a manifest abuse of discretion. See Herrin v. State, 71 Ga.App. 384(2), 31 S.E.2d 124; North v. State, 69 Ga.App. 836(2), 26 S.E.2d 892; Jackson v. State, 56 Ga.App. 250(2), 192 S.E. 454; Kennedy v. State, 9 Ga.......
-
Logan v. State
...for new trial. The trial judge is the trier of the facts in deciding motions based on newly-discovered evidence. Herrin v. State, 71 Ga.App. 384, 387(2), 31 S.E.2d 124 (1944). As to the evidence defendant sought to introduce at trial, however, its credibility and weight would be within the ......
-
Young v. State, A89A2198
...will not in such a case control his discretion as to the ... credibility of the witnesses...." [Cits.]' [Cit.]" Herrin v. State, 71 Ga.App. 384, 387, 31 S.E.2d 124 (1944). (b) Appellant's contention that he was entitled to a new trial because of newly discovered evidence that reports of phy......