Smith v. State, (No. 6925.)
| Decision Date | 13 April 1929 |
| Docket Number | (No. 6925.) |
| Citation | 168 Ga. 611,148 S.E. 531 |
| Parties | SMITH. v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied June 13, 1929.
(Syllabus by Editorial Staff.)
Error from Superior Court, Heard county; C. E. Roop, Judge.
W. M., alias Bill, Smith, was convicted of murder, and he brings error. Affirmed.
A. B. Taylor, Smith & Millican, and Willis Smith, all of Carrollton, for plaintiff in error.
Wm. Y. Atkinson, Sol. Gen., of Newman, L. B. Wyatt, of La Grange, J. J. Reese, of Carrollton, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
Syllabus Opinion by the Court.
HINES, J. Smith was indicted for the murder of Ellis Powers. On his trial he was convicted, without a recommendation; and was sentenced to be electrocuted. He moved for a new trial on the formal grounds, and upon certain special grounds. The trial judge overruled his motion for new trial, and to this ruling he excepted
1. Seven grounds of the motion for new trial are based upon newly discovered evidence. The evidence in six of these grounds consists of statements and conduct of the deceased, tending to show a purpose on his part to debauch two of the daughters of the defendant, and of warnings by the defendant to the deceased to desist from such conduct. The evidence embraced in the other of these grounds was that of a daughter of the defendant, who was sworn on his trial and in his behalf as a witness. In her affidavit she deposed that when she saw the deceased coming down the road just before the homicide she was afraid there would be trouble, and as soon as she saw her father start towards the truck and turn his back to her she waved to the deceased to go on and not stop, she having told her father just prior to this time of the improper proposals made to her by the deceased; that no one asked her, when sworn on the trial, about motioning to the deceased to drive on; that her father did not see her wave to the deceased; and that she had not told him or his attorneys about it, and no one knew about it until after the trial in this case, except her and the wife of the deceased. On the trial the defendant introduced evidence of declarations and conduct on the part of the deceased, tending to show a purpose on his part to debauch the daughters of the defendant. In the affidavits made to support the witnesses deposing as to this newly discovered evidence, the makers state that these witnesses associated with the best people in the communities of their residences, but fail to give the names of their associates.
(a) Motions for new trial based on newly discovered evidence are not favored by the courts. Monroe v. State, 5 Ga. 86(6); Young v. State, 56 Ga. 403.
(b) Newly discovered evidence which is cumulative, and tends to establish a fact in relation to which there was evidence on the trial, is not good cause for a new trial. Roberts v. State, 3 Ga. 310(2); Young v. State, 131 Ga. 498, 62 S. E. 707; Phillips v. State, 163 Ga. 12, 135 S. E. 421.
(c) Affidavits introduced to support witnesses deposing as to newly discovered evidence should give the names of the associates of such witnesses; and a statement that such witnesses keep good company is not sufficient to meet this requirement. Young v. State, supra; Ivey v. State, 154 Ga. 63, 113 S. E. 175.
(d) Due diligence ought to have enabled the defendant to discover all facts helpful to his cause within the knowledge of his daughter, and especially when she was sworn as a witness in his behalf as to certain facts material to his defense, and did not state other facts favorable to her father because she was not asked as to them. Roberts v. State, supra; Greer v. Raney, 120 Ga. 290, 47 S. E, 939; Chandler v. Mutual Life & Ind. Ass'n, 131 Ga. 82, 88, 61 S. E. 1036.
(e) Applying the above principles, the trial judge did not err in overruling the grounds of the motion for new trial based upon newly discovered evidence.
2. The defendant further moved for a new trial upon the ground that A. W. Stallings and Frank P. Jackson, two of the jurors who tried his case, were not fair and impartial jurors, and for this reason were disqualified and incompetent to. act as jurors in the trial of his case. The only evidence to sustain the disqualification of the juror Stallings is embraced in the affidavit of B. F. Shiry, who deposes that he heard Stallings say, before the trial, that he had known the defendant all his life, that the defendant was rough, that it would not do for the defendant to havehim on his case, and that they had better not take him on a case like that of the defendant. The state introduced the affidavit of the juror Stallings, in which he denied that he made the statements attributed to him in the affidavit of Shiry. In support of the allegation that Jackson was not fair and impartial, and for this reason was disqualified and incompetent to act as a juror in the case, the defendant introduced the affidavit of W. W. Lipham that on or about June 28, 1928, he heard this juror say that the defendant ought to be mobbed, and say something about what he would do if he was on the jury, but witness cannot hear very well and did not understand what he said he would do if he was on the jury. The defendant introduced also the affidavit of W. W. Spradlin, who deposed that on June 28, 1928, in front of Charley Lip-ham's store, several persons congregated and were talking about the shooting of the deceased by the defendant, and that he heard the juror Jackson say that the defendant ought to be mobbed, and that, if they did not mob him, if he were on the jury he would do all he could to hang him. The defendant introduced also the affidavit of J. C. Spradlin, in which he deposed that on the above date he was in front of Charley Lipham's store, and heard this juror talking about the defendant shooting the deceased, and heard the juror say that the people ought to take him out of jail and mob him, and that, if they did not, if he was on the jury he would do all he could to hang him. The defendant introduced the affidavits of three witnesses, in which they deposed that the character and credibility of the above affiants were good, and that...
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Moss v. State
...v. State, 56 Ga. 403 (4), citing Berry v. State, 10 Ga. 511 (13), 527; Miller v. State, 151 Ga. 710, 713, 10S S. E. 38; Smith v. State, 168 Ga. 611, 612, 148 S. E. 531; Stubbs v. State, 41 Ga. App. 836, 837, 155 S. E. 100. "And unless it is reasonably apparent to the judicial mind that the ......
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Moss v. State
...56 Ga. 403 (4), citing Berry v. State, 10 Ga. 511 (13), 527; Miller v. State, 151 Ga. 710, 713, 108 S.E. 38; Smith v. State, 168 Ga. 611, 612, 148 S.E. 531; Stubbs v. State, 41 Ga.App. 836, 837, 155 S.E. "And unless it is reasonably apparent to the judicial mind that the new facts would pro......
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Smith v. State
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