Glass v. State , 198 Ga. 491 ( 1944 )

1. This court is without jurisdiction to entertain and pass upon an assignment of error in a bill of exceptions presented on August 12, 1944, complaining of a ruling entered on May 30, 1944, denying a motion for new trial. Code, §§ 6-903, 6-904; Harrison v. Lyerly Ginneries c. Co., 155 Ga. 695 (117 S.E. 818); Brumfield v. Jackson, 193 Ga. 548 (19 S.E.2d 279).

2. Treating the motion, filed after the refusal to grant the motion for new trial, as a motion for rehearing, the denial of which is also as signed as error, no abuse of discretion is shown in refusing to vacate the order refusing a new trial.

3. Treating the second motion, not as a motion for rehearing, but as an extraordinary motion for new trial, no error is shown in refusing to grant it.

(a) Applications for new trial on the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant a new trial on that ground will not be reversed unless there has been an abuse of such discretion. McCoy v. State, 191 Ga. 516 (13 S.E.2d 183).

(b) To render alleged newly discovered evidence available as cause for new trial, it should appear that the evidence itself is newly discovered, not merely that a certain witness by whom the contention of the losing party can be proved was unknown until after the trial. Burgess v. State, 93 Ga. 304 (20 S.E. 331); Jinks v. State, 117 Ga. 714, 716 (44 S.E. 814).

(c) The evidence of the witness last referred to would merely have contradicted the witnesses for the State, whose evidence, as it appears in this record, abundantly supported the verdict of guilty, and the judge could well have found that it probably would not have changed the result. McLaughlin v. State, 141 Ga. 132 (80 S.E. 631).

Judgment affirmed. All the Justicesconcur.

No. 15024. NOVEMBER 21, 1944. Jimmie Lee Tye and Henry Glass were jointly indicted for the murder of Lonnie Johnson, but were tried separately. The present record pertains solely to the trial of Glass. The testimony of several of the State's witnesses connected Tye and Glass with the killing. When one of the defendants was ordered out of his store by the proprietor because he was a "bad character," they both left, one saying, "Let us go to the other store and raise hell; we are going to get some soldier to-night that cut our buddy;" Glass, pointing out Lonnie Johnson to Tye at a beer garden, saying, "There he is," and both accusing him of cutting one of their buddies, and calling him a damn liar and a son of a bitch when he denied the accusation; and a witness seeing Tye stab the deceased while Glass was present. The jury returned a verdict of guilty without a recommendation. A motion for new trial was overruled on May 30, 1944. The defendant's counsel filed a motion praying that a rehearing be granted. This was filed June 19, 1944. The judge on that day issued the following order: "Read and considered. Let the State of Georgia show cause before me at 10 o'clock, a. m. on the 12th day of July, 1944, why the prayers of the movant should not be granted, at 10 a. m. Let a copy of this motion and attending affidavits be served upon the solicitor-general of Fulton County, also a copy of this order." In the bill of exceptions this latter motion is designated an "extraordinary motion." It was overruled on July 26, 1944.

The deposition of the newly discovered witness was as follows: "Affiant was standing before Spence's Beer Garden, and saw Henry Glass when he tied up Arthur's arm when he was cut. After Arthur was carried to the hospital, Tye told Johnson that if he said he did not cut Arthur he was a liar. About that time another soldier who was with some girls came up there and said: ``That man didn't cut him; I did it, and I will cut you.' Then some of the boys got them to separate and the soldier who cut Arthur, with some girls, went down the street, and Lonnie Johnson and two women went down the street also, and Jimmie Lee Tye and Henry Glass went up the street. I went in the beer saloon and soon Lonnie came in by himself. Some time afterwards Henry Glass came in, and Jimmie Lee Tye followed him. Affiant and Joe Mayfield were talking to Lonnie in the middle of the floor when Henry came in. Henry called to Lonnie to come to him. Lonnie went towards Henry and Henry said, ``What did you draw a knife on me for?' and Lonnie said, ``I didn't draw a knife on you; I didn't know anything about it.' Henry then turned and walked back to the door, and Tye said to Lonnie, ``If you say you didn't draw a knife, you are a God damn liar,' and stabbed Lonnie, I do not know how many times."

The bill of exceptions, which was presented on August 12, 1944, assigns error on the overruling of the motion for new trial on May 30, 1944, and also on the overruling and denial, on July 26, 1944, of the motion for a rehearing.