Thornton v. McLendon , 41 Ga. 263 ( 1870 )

By the Court—

BROWN, C. J.,

delivering the opinion.

We do not think the charge of the Court to the jury in this case violated any rule of law. The counsel of plaintiff in error insists, that as the books of account were not in evidence, the Judge should have said nothing about the rules of law governing the introduction of that kind of evidence. It might have been more regular to have omitted the part of the charge which related to the manner of producing books of account in evidence. But as the question had been made as to the introduction of copies of the accounts taken from the original books, and the witness had testified from those copies uáed to refresh his memory, and as the Judge charged *the law as to the introduction of such books in evidence correctly, and stated that, as the original books were not introduced, the plaintiff, as a witness, might prove the account by his own testimony, but that he must show that the work was done and that the prices charged were reasonable, we think the case was fairly submitted to the jury, and they could not have been mislead by the charge. We therefore refuse to interfere on this ground.

Did the Court err in refusing to grant a new trial, on account of the newly discovered evidence? We think not. The main ground insisted upon was, that the plaintiff was insane because he did not swear as his counsel expected, and would not state of his own knowledge, that any item in the account, as drawn off by him from the book, was correct, and that this insanity was not discovered till after the trial. We confess we see no evidence of insanity in ■ the testimony, as given in under oath by the plaintiff on the trial. Irle stated that he kept his own books, and charged the work done in the shop as it was reported to him by his blacksmith; that he saw some of the work done himself, but could not tell which it was; that, after the war, he had drawn off his accounts from his books and had thrown his books aside; that he had made no search for them, and could not tell whether they were lost or not; and, when asked if he could specify any one item of work done and furnished to defendant, as charged in said account, he answered that he could not, and would not swear to any one item in said account. We think this looks much more like the evidence of a rational, conscientious witness, than an insane person. As he did not do the work himself, and only entered it on his books as reported to him by his blacksmith, how could he, as a conscientious man, swear to the correctness of any one item of his own knowledge? He adds in another part of. his testimony, that his mind had been refreshed from looking upon the accounts, and he would state from his belief that they were correct, but could not swear positively to any particular item.

But Dr. Little swore that on the 27th of December, some ^twenty days after the trial, he called to see him and he was completely deranged in mind; and, on investigating his case, he believes his mind •. had been impaired for months. And Mr. Speer, his attorney, swears that a few days after the trial, he called at his house on business,, and discovered that his mind was deranged. No witness who saw or examined him at the time of the trial, or before that time, swears to any derangement then existing. And we are lead to believe from the testimony given in by the party, that Dr. Little was mistaken as to his situation, if he intended to convey the impression that he was insane at the time of the trial. We do not think, therefore, that the newly discovered evidence of insanity was sufficient to have changed the verdict, if a new trial had been granted, and if this evidence had been before the jury on the trial.

But it is said there is newly discovered evidence as to the books, some of which have since been found. The difficulty on this point is, that there is no evidence in the record, that shows that the plaintiff had made any search for them, or exercised any diligence to produce them on the trial. When examined as a witness he swears he had not. And the only evidence that he had, is found in his affidavit made a day1 or two after the trial. But how does this affidavit help the case? If the affidavits of Dr. Little and Mr. Speer, are to be held sufficient to establish insanity, when he was sworn on the trial, the same affidavits prove that he was equally insane when he made the affidavit a day or two afterwards; and we have as much reason to credit his first statement on the trial, as his subsequent one after the hearing of the case.

The Judge who tried this case saw and heard the witness testify, and had a much better opportunity to form a correct conclusion in this matter than we can possible have from an examination of the record, and, as he was satisfied with the verdict, and the case is a very small one, the contest being about a blacksmith’s account of less than $100 00, upon the Confederate basis during the war, we will not disturb the verdict.

Judgment affirmed.