Smith v. State , 95 Ga. App. 775 ( 1957 )

95 Ga. App. 775 (1957) 98 S.E.2d 606

SMITH
v.
THE STATE.

36727.

Court of Appeals of Georgia.

Decided May 17, 1957.

Hollis Fort, Jr., for plaintiff in error.

Claude N. Morris, contra.

TOWNSEND, J.

1. The sole special ground of the amended motion for a new trial which is insisted upon is on the ground of newly discovered evidence. The alleged newly discovered evidence is that of a witness whose affidavit is in the record, but there are no affidavits in support thereof as required by Code § 70-205. Accordingly, this ground cannot be considered. Winder v. State, 18 Ga. App. 67 (2) (88 S.E. 1003).

2. The sole contention of the plaintiff in error is that his brother, and not himself, is the man who sold the beer and wine to an employee of the State Revenue Department and this is a case of mistaken identity. While he produced a number of witnesses who swore to the effect that he was not in the store on the Sunday in question, and while the jury might well have believed these witnesses and acquitted him, they chose instead to believe the witness for the State, who positively identified the defendant as the man who sold him the beer and wine, and whom he knew because the defendant had been pointed out to him about two weeks previously. Questions as to the preponderance of evidence, on motions for new trial, do not address themselves to this court, but rather to the discretion of the trial court. Josey v. State, 197 Ga. 82, 93 (28 S.E.2d 290). There being some evidence to support the verdict, the general grounds of the motion for new trial are without merit. See Martin v. State, 95 Ga. App. 519, 98 S.E.2d 105.

The trial court did not err in denying the motion for new trial.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.