Burrage v. State , 21 Ga. App. 508 ( 1917 )

Bloodwobth, J.

1. The indictment in this case charges the defendant with manufacturing alcoholic liquors. The special ground of the motion for-new trial is based upon the alleged newly discovered evidence of one Marshall Turner, who makes affidavit that he and another, and not the defendant, owned and operated the still, and that it was he and not the defendant who ran'away from the still when it was captured. Where more'than two years have elapsed after a misdemeanor has been committed, the confessions of a person who is neither indicted for nor accused of the crime, that he, and not the defendant who has been ■ . convicted, is the guilty one, will not authorize the granting of a new trial. Indeed it has'been repeatedly held that even where two persons are jointly indicted, and one of them acknowledged that he alone is guilty, the evidence is inadmissible on the trial of the other defendant. Robison v. State, 114 Ga. 445 (2) 447 (40 S. E. 253), and cases there cited. The reason for the rule is thus stated in the decision just referred to: “All one defendant would have to do would he to admit that his guilty accomplice was innocent, and that he himself had perpetrated the crime, absent himself so as to enable the party on his trial to have the benefit of his admission, and, after his acquittal, appear, demand his trial, and prove by the evidence of the acquitted party that he was in fact the guilty person.” In addition to the above, this evidence is cumulative and impeaching in its character. Besides this ground of the motion need not be considered by this court, because it fails to comply with all the requirements of §' 6086 of the Civil Code of 1910; Penal Code, § 1088.

Decided December 19, 1917.

Indictment for misdemeanor; from Haralson superior court— Judge Bartlett. September 29, 1917.

I. N. Cheney, for plaintiff in error. J. B. Hutcheson, solicitor-general, contra.

.2. The jury believed the evidence for the State, the trial judge refused to set aside their finding, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Harwell, J., ooneur.