Payne v. State , 75 Ga. App. 737 ( 1947 )

1. "The grant or refusal of an extraordinary motion for a new trial based upon the ground of newly discovered testimony, rests largely in the sound discretion of the trial judge; and this court will not interfere with the exercise of that discretion, where the newly discovered evidence is largely impeaching and cumulative in character, and where it does not appear that such an extraordinary state of facts was shown by the affidavits submitted upon the hearing of the extraordinary motion as would probably produce a different result if a new trial should be granted." Darby v. State, 24 Ga. App. 269 (100 S.E. 656). See also Rogers v. State, 129 Ga. 589 (59 S.E. 288); Thomas v. State, 19 Ga. App. 242 (91 S.E. 287); Moon v. State, 51 Ga. App. 70 (179 S.E. 589); Harrell v. State, 69 Ga. App. 482 (26 S.E.2d 151).

2. In the instant case, defendant in error relies upon the affidavit of N.C. Carroll, which in its general character was merely cumulative to the case heretofore presented, and impeaching, and this court can not say that the trial judge abused his discretion in overruling the extraordinary motion for a new trial. See Payne v. State, 74 Ga. App. 646 (40 S.E.2d, 759), for a statement of the case when previously before this court.

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

DECIDED OCTOBER 1, 1947.