Young v. The State Of Ga.
| Decision Date | 31 January 1876 |
| Citation | 56 Ga. 403 |
| Parties | Squire Young, plaintiff in error. v. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Criminal law. New trial. Newly discovered evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1875. Reported in the opinion.
Wright & Hill, for plaintiff in error.
John T. Glenn, solicitor general, for the state.
1. This case turned on the identification of the prisoner as the person who stole and rode off the horse. The evidence shows that he was recognized with tolerable certainly by three witnesses. One of them saw him catch the animal, tie, mount, and ride off. Another saw him upon the roadside with the animal hitched near him. Another, seeing him run through the woods on foot, pursued and caught him. This was in the neighborhood of where the person riding, whoever *he was, had been seen by two witnesses to dismount from the horseand escape into the woods to avoid capture. The jury believed that the prisoner\'s identity was sufficiently established to warrant them in finding him guilty, and we cannot say that they were mistaken. Even with the newly discovered evidence we cannot say that they ought, or that they probably would, find differently on another trial.
2. A part of the evidence called newly discovered is not so; the prisoner knew of it, and should have informed his counsel. We observe from the record that, though a colored person, and but fifteen years old, he had been to school and could write his name. He had intelligence enough to be chargeable with legal diligence in preparing for his defense.
3. The only evidence in the showing for a new trial which we can recognize as newly discovered, is that set out in the affidavit of Harrison Davis, which is simply a repetition of what was sworn to on the trial by one of the prisoner's witnesses, applied to another time and place, namely, that the prisoner was not the rider of the animal, and that the rider had a moustache. The witness examined testified to such a rider being seen on the animal in Davis street, and the new witness describes the same rider as passing the rolling mill. The only difference in the two statements is, that the former witness says nothing of side whiskers, and represents the man as old; whereas, the latter witness omits any reference to age, and mentions side whiskers as well as moustache. It may be that this new evidence is not strictly cumulative. The fact of the same rider passing the rolling mill on the horse is not the same as the fact of his passing through Davis street, and yet the whole value of both facts depends on one and the same thing, to-wit: the supposed identification of the rider as some person other than the prisoner. It is difficult to see how identifying him thus at two places by one witness at each, is any better than identifying him at one place by the same two witnesses.. In the present case there...
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Cobb v. State, 22166
...overruling defendant's ordinary motion for new trial. Defendant is chargeable with legal diligence, of which it was said in Young v. State, 56 Ga. 403, 404(2), 'A part of the evidence called newly discovered is not so; the prisoner knew of it, and should have informed his counsel. We observ......
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