Choran v. State , 22 Ga. App. 117 ( 1918 )

Harwell, J.

(After' stating the foregoing facts.) The defendant’s own witness testified that he tried to get some whisky from the defendant on the day the defendant was charged with having sold it. This was a circumstance which the jury had a right to take into consideration. The defendant in'his statement admitted that he had sold whisky illegally, that he had been convicted several times of so doing, and that he was at that' timé under sentence for selling whisky, and that he had a motion for * new trial pending. The testimony of the State’s witness, Dorris, included every material'fact necessary .to convict the. defendant, and undoubtedly made out a case against him. Where no error of law is committed, as in the instant case, and there is some evidence on which to base the verdict, this court has no authority to interfere. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732).

There was testimony that the State’s principal witness had whisky on the day that he was alleged to have bought it from defendant, and he admitted having sold it and being under indictment for selling it; still the jury had a right to believe him, and evidently did believe him. The credibility of a witness is a matter to be determined by the jury, and neither bad character nor conviction of crime renders a witness incompetent. Penal Code, § 1054; Stone v. State, 118 Ga. 705 (6), 714 (45 S. E. 830, 98 Am. St. R. 145); Ray v. State, 91 Ga. 87 (16 S. E. 311); Pace v. Hazlehurst, 9 Ga. App. 203 (70 S. E. 967).

The newly discovered evidence was merely cumulative and impeaching in its character, and was not sufficient to Tequire a new trial. It only purported to show that the State’s witness had and sold some whisky on the. day that he claimed to have bought some from defendant. Sweat v. State, 90 Ga. 315 (3), 316 (17 S. E. 273); Potter v. State, 12 Ga. App. 315 (77 S. E. 186).

There being no error of law, and there being sufficient evidence to authorize the verdict, the judgment is

Affirmed.

Broyles, P. J., and Bloodworth, J., concur.