Offutt v. State, 31537

• Decision Date: 23 February 1977
• Docket Number: No. 31537,31537
• Citation: 238 Ga. 454,233 S.E.2d 191
• Parties: Robert Michael OFFUTT v. The STATE.
• Court: Georgia Supreme Court

Page 191

233 S.E.2d 191

238 Ga. 454

Robert Michael OFFUTT v. The STATE.

No. 31537.

Supreme Court of Georgia.

Feb. 23, 1977.

Rehearing Denied March 8, 1977.

Daniel F. Byrne, College Park, for appellant.

William H. Ison, Dist. Atty., J. W. Bradley, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM.

The appellant was convicted for having committed armed robbery, and he has appealed. After his conviction he filed a motion for a new trial. Before that motion was heard, he filed an amendment to it based on evidence discovered after his conviction that he alleged was consonant with his innocence and would have affected the outcome of his trial. A hearing was conducted on the amended motion for new trial; the alleged "newly discovered evidence" was presented and made a part of the record; and the trial judge overruled the amended motion.

The appellant contends that the newly discovered evidence asserted in his amended motion for new trial and presented to the trial court at the hearing warranted a granting of a new trial under the standards set out in Bell v. State, 227 Ga. 800, 183 S.E.2d 357 (1971).

We do not agree with this contention of the appellant. All six requirements set out in Bell, which must be complied with prior to the court granting a new trial on grounds of newly discovered evidence, have not been met by appellant in this case. Therefore, the overruling of the amended motion for new trial was not erroneous.

Judgment affirmed.

All the Justices concur, except NICHOLS, C. J., and INGRAM and HILL, JJ., who dissent.

HILL, Justice, dissenting.

A Majik Market in Clayton County was held up by three men. The clerk was the only witness to the crime, and the identification of the robbers depended on this witness' testimony. The defendant and Ronald Orvis were tried together for the armed robbery. The defendant called three alibi witnesses and a hung jury resulted. The defendant and Orvis were tried a second time, but again the jury could not agree. Orvis was tried separately a third time and was convicted. This court upheld his conviction. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976). The defendant was tried separately and convicted. Later a third man, Steven Wright, was identified. At Wright's trial James Dickson testified that the actual robbers were himself, Orvis and another man. Dickson stated that neither the defendant Offutt nor Wright committed the robbery. The jury acquitted Wright. The defendant amended his motion for new trial based on Dickson's testimony at Wright's trial.

In view of the jury's acquittal of Wright based upon Dickson's testimony, I believe that this defendant should have a new trial so that this defendant's guilt or innocence will have been decided after consideration of Dickson's testimony. The fact that the first two juries were unable to find this defendant guilty supports this position.

The...