Jackson v. State , 56 Ga. App. 250 ( 1937 )

Broyles, C. J.,

concurring specially. "When a motion for new trial is made on the ground of newly discovered evidence, , . if the newiy discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Code, § 70-205. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” (Italics mine.) Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175). In the instant case there were several affidavits in support of the witness upon whose newly discovered evidence a new trial was sought, but in only one of them (an affidavit made by only one person) were the names of his associates given. The affidavits which failed to set fdrth such names were so defective that it was unnecessary for the judge to consider them. And the judge did not abuse his discretion in overruling the ground of the motion for new trial based upon the alleged newly discovered evidence, because the Code requires proper supporting affidavits; that is, more, than one such affidavit, or one such affidavit made by two or more persons. I concur in the judgment of affirmance, but not in all the rulings in the decision of the majority of the court.