Rawlins v. State , 1906 Ga. LEXIS 334 ( 1906 )

Lumpkin, J.

(After stating the facts.) We were requested to review the decision made when these same movants, with others, were plaintiffs in error after their former motions for new trial had been overruled. Rawlins v. State, 124 Ga. 31. This, of course, •can not be done. What was then decided is the’ law of this case as to the points then involved. The brief of counsel for plaintiff in •error also requests the review and overruling of the case of Statham v. State, 86 Ga. 331, 333. The ruling there made is as follows: ■“The evidence being sufficient to connect the defendant with the ■offense charged against him, and the alleged newly discovered evidence being that of persons who participated in the offense, but who' swore that he did not, and no sufficient reason being shown why they did not testify on the trial, it was not error to refuse to grant the defendant a new trial upon the ground of such newly discovered evidence.” We perceive no reason for reviewing or reversing it.

The rule is well settled that newly discovered evidence the character of which is merely impeaching or cumulative, will not require the grant of a new trial; nor does the confession of the senior Rawlins, and the discovery that he will testify to the same thing, furnish ,a good ground for granting this extraordinary motion. In Attaway v. State, 56 Ga. 363, it was said: “Newly discovered evidence to the effect that a witness is prepared to swear that she heard a person other than the defendant admit that she did the criminal act of which defendant was convicted, will not authorize a new trial.” See also Kelly v. State, 82 Ga. 441; Briscoe v. State, 95 Ga. 496. In Herndon v. State, 110 Ga. 313, after a conviction of .arson, the defendants moved for a new trial, and all save one alleged that since the trial of said case they had learned that they could prove by the testimony of their codefendant that they had nothing whatever to do with the commission of the crime. It was said, that, “even if such testimony could in a particular instance be regarded as newly discovered evidence, there would be no abuse of ■discretion in disregarding it, the witness being a convicted criminal, whom the judge might readily disbelieve, -and whose character was not vouched for.”

The affidavits on the subject of insanity made a very weak showing, had there been no rebutting evidence or circumstances. In the light of the rebutting facts, they furnish no reason for the grant of n new trial. In view of the entire evidence, there was no error in overruling the motion.

Judgment affirmed.

KÜ the Justices concur, except Fish, G. J., «absent.