Champion v. State , 1918 Ga. App. LEXIS 457 ( 1918 )

Harwell, J.

The defendant was tried and convicted of the offense of seduction, his motion for a new trial was overruled, and he excepted. Three of the grounds of the motion are based upon newly discovered evidence, by which it is sought to attack the chastity of the prosecutrix and to show that she was not a virtuous female. This newly discovered evidence is set out in the affidavits of three witnesses, Bowen, Taylor and Tearwood. There are supporting affidavits as to their credibility, and affidavits of the defendant and his counsel showing diligence and want of knowledge of this testimony before the trial. However, there are no supporting affidavits as to the residence, associates, and means of knowledge of the new witnesses; and even if the evidence alleged to be newly discovered was sufficient to authorize the grant of a new trial, the failure to attach such affidavits would prevent that result from being reached in the present case. Hatcher v. State, 116 Ga. 617, 621 (42 S. E. 1018); Phillips v. State, 138 Ga. 815 (2) (76 S. E. 352). These witnesses were sworn at the hearing of the motion and were examined before the court, and the stenographic report of their testimony is in the record. The State, at the hearing of the motion, offered counter-affidavits contradicting the testimony given by these witnesses, and also testimony impeaching in its character. It is not necessary to discuss the testimony offered by the defendant in support of the motion, and that offered by the State controverting it and tending also to impeach the witnesses upon whose testimony the newly discovered evidence was based. Upon the hearing of a matter of this kind the trial judge becomes the trior of the facts, and it is in his discretion to refuse or to grant the new trial. Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116); Hayes v. Stale, 16 Ga. App. 334 (85 S. E. 253). We can not say in this case-that the trial judge, in refusing to grant a new trial upon this alleged newly discovered evidence, abused his discretion. The most important evidence submitted was the testimony of a boy named Yearwood, who testified to an alleged act of sexual intercourse by the prosecutrix. If the testimony offered by the State in rebuttal of Yearwood’s statement and impeaching Yearwood is to be believed, this witness was thoroughly discredited. At any rate the trial judge had these witnesses before him where he could observe them and their manner on the stand, and evidently he did not think that the testimony was such as would authorize the grant of a new trial, and this court can not say that he erred in his refusal to grant a new trial upon the ground of the alleged newly discovered evidence. Penal Code (1910), § 1088; Potter v. State, 12 Ga. App. 315 (77 S. E. 186). The headnotes dealing with other questions in the case require no elaboration.

Judgment affirmed.

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