Phillips v. State

• Court: Georgia Court of Appeals
• Writing for the Court: GUERRY
• Citation: Phillips v. State, 56 Ga.App. 463, 192 S.E. 840 (Ga. App. 1937)
• Decision Date: 25 September 1937
• Docket Number: No. 26423.,26423.
• Parties: PHILLIPS. v. STATE.

56 Ga.App. 463

192 S.E. 840

PHILLIPS.

v.STATE.

No. 26423.

Court of Appeals of Georgia, Division No. 1.

Sept. 25, 1937.

Syllabus by Editorial Staff.

Error from Superior Court, Cook County; W. R. Smith, Judge.

S. H. Phillips brings error.

Affirmed.

J. P. Tomlinson, and H. W. Nelson, both of Adel, for plaintiff in error.

H. C. Morgan, Sol. Gen., of Homerville,

for the State.

Syllabus Opinion by the Court.

GUERRY, Judge.

"Upon the hearing of a motion for new trial, and in the consideration of a ground of the motion, dependent upon newly discovered evidence, where affidavits are introduced supporting and disputing the ground of the motion, the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses. A re-viewing court will not in any such case control his discretion as to the comparative credibility of the witnesses who testified in support of the motion and those who swore to the contrary." Fouraker v. State, 4 Ga. App. 692, 62 S.E. 116; Central of Ga. Ry. Co. v. Clark, 15 Ga.App. 16, 82 S.E. 600; Tyre v. State, 38 Ga.App. 206, 143 S.E. 778; Rowland v. State, 38 Ga.App. 664(1), 145 S.E. 100. Under the showing made by the defendant and the counter showing made by the State, the above principle is controlling in this case. The court did not err in overruling the motion for new trial.

Judgment affirmed.

BROYLES, C. J., and MacINTYRE, J., concur.