Tyre v. State

• Docket Number: 17404.
• Decision Date: 13 July 1926
• Citation: 134 S.E. 178,35 Ga.App. 579
• Parties: TYRE v. STATE
• Court: Georgia Court of Appeals

134 S.E. 178

35 Ga.App. 579

TYRE v. STATE

no. 17404.

Court of Appeals of Georgia, First Division

July 13, 1926

Syllabus by Editorial Staff.

Allegation in motion for new trial, based on alleged relationship within prohibited degrees of prosecutor and juror, that neither accused nor counsel knew of relationship prior to trial nor could have discovered same sooner by exercise of reasonable diligence, held a conclusion.

Affidavit supporting witness on whose newly discovered evidence new trial is sought must give names of associates, statement that he keeps good company not being sufficient.

Where evidence demanded verdict, fact that one juror was related to one of parties within prohibited degrees does not require new trial.

Error from City Court of Baxley County; L. N. Speer, Judge.

H. L Tyre was convicted of an offense, and he brings error. Affirmed.

H. L Williams, of Baxley, for plaintiff in error.

Wade H Watson, Sol., of Baxley, for the State.

Syllabus OPINION.

BLOODWORTH J.

The only special ground of the motion for a new trial is based upon the alleged relationship within the prohibited degrees, of the prosecutor and one of the jurors who tried the case. This ground alleges that neither the accused nor his attorney knew of said relationship prior to the trial of the case, nor could either "have discovered the same sooner by the exercise of reasonable diligence." In Wheeler v. Salinger, 33 Ga.App. 302 (9), 125 S.E. 890, this court held:

"A bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered 'could not have been discovered by the exercise of ordinary care' is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence. Taylor v. State, 132 Ga. 235, 237 (63 S.E. 1116); Patterson v. Collier, 77 Ga. 292 (3 S.E. 119); Evans v. Grier, 29 Ga.App. 426 (3) (115 S.E. 921); Holder v. Farmers' Exchange Bank, 30 Ga.App. 400 (6, 7) (118 S.E. 467)."

The sixth headnote in Ivey v. State, 154 Ga. 63, 113 S.E. 175, is as follows:

"An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a countershowing;

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