Parks v. State

• Decision Date: 15 July 1948
• Docket Number: No. 16267.,16267.
• Citation: 48 S.E.2d 837
• Parties: PARKS. v. STATE.
• Court: Georgia Supreme Court

48 S.E.2d 837

PARKS.

v.STATE.

No. 16267.

Supreme Court of Georgia.

July 15, 1948.

Syllabus by the Court.

The court did not abuse its discretion in overruling the defendant's extraordinary motion for new trial based on newly discovered evidence.

(a) Motions for new trial based on newly discovered evidence are not favored by the law. Extraordinary motions based on that ground are viewed by the courts with even less favor and a stricter rule is applied.

(b) No abuse of discretion is shown where an extraordinary motion for new trial is made on the ground of newly discovered evidence and on counter showing that the alleged new evidence is contradicted.

(c) An extraordinary motion for new trial based on the ground of newly discovered evidence should not be granted unless it is clearly apparent that the new evidence will likely produce a different verdict on another trial.

(d) After the accused has been convicted, a new trial denied him, and that judgment has been affirmed, an extraordinary motion for new trial on the ground of newly discovered evidence is addressed to the sound legal discretion of the trial judge and his judgment will not be controlled unless it clearly appears from the record that his discretion has been abused.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Freddie Parks, alias Fred Alexander, was convicted of murder without recommendation, and, upon refusal of his extraordinary motion for new trial on ground of newly discovered evidence, after conviction had been affirmed, the defendant brings error.

Affirmed.

Freddie Parks, alias Fred Alexander, was indicted for the murder of Mrs. Leroy Atchley. The indictment charged that the offense was committed in Floyd County on November 19, 1945. The accused has been twice convicted, without recommendation, for the offense charged. On the first appearance of his case in this court it was held by a divided bench that the evidence was not sufficient to show his guilt. Parks, alias Alexander, v. State, 202 Ga. 84, 42 S. E.2d 103. When here the second time, and also by a divided bench, a judgment overruling his motion for a new trial was affirmed. Parks, alias Alexander, v. State, 203 Ga.-, 46 S.E.2d 504. Since the judgment of affirmance was rendered by this court the accused has filed an extraordinary motion for new trial on the ground of newly discovered evidence. The exception here is to a judgment overruling that motion.

On the last trial of the accused it was shown by the State's evidence that Mrs. Atchley was last seen alive at about 1:30 p. m. on November 19, 1945, by a rural letter-carrier who delivered to her a C. O. D. package at that time; that her body was found the following morning about 8 o'clock near a side dirt road leading from the Huffacre road to the home of Tom and Eula Parks; and that from the condition of the body, when found, it was estimated that she had been dead from five to twenty hours. In his statement to the jury, the defendant admitted that he was at the home of Tom and Eula Parks, his relatives, on November 19, 1945, but said that he left there immediately after the 12:30 p. m. news broadcast; that he walked from there to the Huffacre road, which was only a short distance, where he caught a truck driven by a colored person unknown to him; that he road the truck from there to Rome, getting off in front of the county court house; and that after spending some time in Rome he caught a bus and went to his home near Lindale, which, according to the record, is some fourteen and one-half miles from the place where the body of Mrs. Atchley was found.

Attached to and made a part of the extraordinary motion for new trial are affi davits by Robert Couch, Ruth Couch, Tom Lynch, and Jacob Lynch; also the required supporting affidavits. Affiants Robert and Ruth Couch, in substance, said: They reside about 400 yards from the place where the body of Mrs. Atchley was found; that on the evening of November 19, 1945, at about 7 o'clock, or a few minutes later, they heard for some four or five minutes the screams of a woman in the direction of the place where Mrs. Atchley's body was found the following morning: that the screams were unusual and definitely indicated that the person screaming was in distress or was being attacked by something or somebody; that they did not then tell about the screaming because of certain threats which had been made by interested parties in the community against Tom and Eula Parks, the accused Freddie Parks, and anyone else who offered to help the accused in his defense. Affiants Tom and Jacob Lynch, father-in-law and brother-in-law, respectively of the accused, in substance, said: The accused left their home --the place where he also resides, early on the morning of November 19, 1945, to visit his relatives, Tom and Eula Parks, who reside about 5¹/₂ miles northwest of Rome, just off of the Huffacre road; that he returned on the same day at from 5:00 to 5:30 in the afternoon; that upon his return they noticed nothing unusual about his conduct, he did not seem to be excited, and they saw nothing unusual about his clothing; that he helped Jacob Lynch cut wood until about dark; and did not leave their home again that day or night. It is not insisted that the accused and his counsel did not know of the facts contained in the affidavits of Tom and Jacob Lynch prior to the trial, but it is contended that the evidence of these affiants did not become relevant or material until the information contained in the affidavits of Robert and Ruth Couch was discovered.

The State made a counter-showing and called Robert and Ruth Couch as witnesses. Among other things, Ruth Couch testified: "I don't know that anybody made any threats at any time against myself or Bob (Robert Couch), or Freddie Parks or Tom or Eula Parks. No, I don't knowhow far it is to where Mrs. Atchley was found. I have never been over that road. I was told that Mrs. Atchley's body was found about four hundred yards from our house. No, I do not know how far it is, because I never did measure it. I was never told how far it is to where she was found. How did I know to put it in the affidavit? I did not write the affidavit. I did not see the affidavit, I do not know what was in it. I knew I heard the scream, and that is all I was intending to say in the affidavit because that was all I knew to say. No, I didn't read it. No, it was not read to me. I signed it. * * * Nobody ever made any threats to me." When this witness was cross-examined she said: "I don't remember whether it was read to me or not, it has been so long I just don't remember things like that. Yes, I knew it contained the fact that I heard those screams, I don't remember anything else in there." The witness also said: "Well, I could not tell you who that was scream-ing.

Robert Couch, in substance, testified that about three weeks after the death of Mrs. Atchley he told some of his neighbors about...