O'Neil v. State
| Citation | 30 S.E. 843,104 Ga. 538 |
| Parties | O'NEIL v. STATE. |
| Decision Date | 25 May 1898 |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When one indicted for crime knows at the time of his trial that certain persons have knowledge of facts material to the case but declines to introduce them as witnesses because of a fear that they will not testify truly, he cannot afterwards avail himself of their testimony as newly-discovered evidence.
2. This court will not reverse a judgment denying an extraordinary motion for a new trial based on newly-discovered evidence although one of the grounds thereof is founded upon the affidavit of a witness whose testimony, as therein set forth relates to material and important facts not brought out at the trial, when, by way of counter showing, it also appears that this testimony conflicts with that of numerous other witnesses, and that as a whole it is merely cumulative upon one of the main issues vigorously contested at the first hearing.
3. A careful examination of the extraordinary motion now under consideration, the same being based exclusively upon alleged newly-discovered evidence, and a consideration of all the grounds of this motion, in the light of the well settled rules of law relating to such evidence, lead to the conclusion that the trial judge did not err in overruling the motion.
Error from superior court, Chatham county; R. Falligant, Judge.
Simon J. O'Neil was convicted of voluntary manslaughter. From a judgment denying a new trial, he brings error. Affirmed.
P. W. Meldrim and F. M. Oliver, for plaintiff in error.
W. W. Osborne, Sol. Gen., for the State.
Sullivan and O'Neil were indicted in the superior court of Chatham county for the murder of one Brooks, in the year 1896. They were jointly tried, found guilty of voluntary manslaughter, and sentenced to confinement in the penitentiary for 15 years. Their motion for a new trial on various grounds was overruled in the superior court; a writ of error was sued out to the judgment overruling the motion; the case was heard in this court at the March term, 1897; and the judgment of the court below was affirmed. On the 22d day of December, 1897, one of the defendants, O'Neil, filed in the superior court of Chatham county another motion for a new trial, on alleged extraordinary grounds. On the hearing of the latter motion, the trial judge overruled it, exception was taken to this action, and we are now asked to review his judgment so rendered. The extraordinary grounds upon which this second motion for a new trial is based are, briefly stated: (1) Because of the newly-discovered evidence of J. F. Henderson, which was to the effect that on the night of the homicide he saw two negroes on the street, concealed by the shadow of a building, suddenly emerge as O'Neil and another white man approached, and one of the negroes (presumably the deceased) struck O'Neil on the head with a stick, and felled him to the sidewalk, etc.; and that the man who was with O'Neil fired on the negro, the shooting, however, having been done after the second attempt of the negro to strike O'Neil. Other details were given in the affidavit which tended to show that O'Neil was attacked before the shooting and resulting homicide. (2) Because of the newly-discovered evidence of Angie Belmont, shown by an affidavit attached to the motion, concerning which the ground of the motion states: (3) Because of the newly-discovered evidence of T. C. Murphey, the arresting officer, shown by an affidavit, concerning which the ground of the motion states that "said testimony of T. C. Murphey was known to this defendant, but was not procured at the trial because of the animosity of Murphey towards him, and of the partiality of Murphey for Sullivan, his co-defendant." (4) Because of statements made by one Anderson to Fleming and Vetter, made since the defendant has been confined in the penitentiary, concerning which the ground of the motion states that "said statements of Anderson are contradictory of his testimony at the trial, and indicative of his animosity and perjury at the time of the trial." (5) Because of the statements made by one Payton since the plaintiff in error has been confined in the penitentiary, concerning which the motion says: "Which statements are indicative of his animosity and perjury at the time of the trial, as shown by the affidavit of B. F. Murphey," etc. (6) A certified copy of the affidavit made by George Budge on the first motion for a new trial, which, the motion states, strongly corroborates the evidence of J. F. Henderson, the witness named in the first ground of the present motion. This motion was heard by the judge of the superior court of the Eastern circuit, who passed on the same, making the following order: The former motion for a new trial was based on the grounds that the verdict rendered was contrary to law, to the evidence, and to the weight of the evidence, on certain rulings of the court, on the admission of certain evidence, on the rejection of certain evidence offered, and because of newly-discovered evidence of George Budge, and upon other grounds not material to be stated here.
1. It appears from the motion itself that the plaintiff in error at the time of the trial, knew of the facts to which the witnesses Belmont and Murphey could testify, and it does not appear that he made any effort to have those witnesses at the trial and place them upon the witness stand. No reason is disclosed in the record why they were not subject to the process of the court, but the movant gives as a reason for the nonproduction of these witnesses the fact that the witness Belmont had animosity towards him, and that he did not consider it wise to force her...
To continue reading
Request your trial