Phillips v. State , 56 Ga. App. 463 ( 1937 )

Guerry, J.

“Upon the hearing of a motion for new trial, and in the consideration of a ground of the motion dependent upon newly discovered evidence, where affidavits are introduced supporting and disputing the ground of the motion, the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and the contradictory witnesses. A reviewing- court will not in such a; ca'se control his discretion as to the comparative credibility of the witnesses who testified in support of the motion and those who swore to the contrary.” Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116); Central of Ga. Ry. Co. v. Clark, 15 Ga. App. 16 (82 S. E. 600); Tyre v. State, 38 Ga. App. 206 (143 S. E. 778); Rowland v. State, 38 Ga. App. 664 (145 S. E. 100). Under the showing made by the defendant and the counter-showing made by the State, the above principle is controlling in this caso. The court did not err in overruling the motion for new trial.

Decided September 25, 1937. J. P. Tomlinson, E. W. Nelson, for plaintiff in error. II. C. Morgan, solicitor-general, contra.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.