Williams v. State , 80 Ga. App. 638 ( 1949 )

Where, as here, the newly discovered evidence offered as the basis of an extraordinary motion for a new trial is only cumulative and impeaching, the discretion of the trial judge in overruling the motion will not be disturbed.

DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 15, 1949. F. F. Williams was tried and convicted in the City Court of Sylvania on a charge of possessing illegal whisky. A motion for a new trial, duly filed, was dismissed for want of service. The defendant thereafter filed his extraordinary motion on the grounds of newly discovered evidence, and complains of the overruling thereof as error.

The evidence of the State consisted of testimony of a State revenue agent and of a policeman. The revenue agent testified: that the policeman and another went to the front door of the defendant's house; that he went to the back, the door was locked, and he heard something being poured into a sink; that the pouring stopped, the defendant opened the door and forcibly delayed his entrance for about ten minutes; that on entering the Kitchen he noticed a distinct odor of whisky in two jars or cans near the sink, but not in the sink itself; that water had been run in the sink; that a 10-gallon keg of whisky was found, about 125 steps — as he counted them — from the front door, in a hedge by a freshly traveled path; that they found 4 empty kegs bearing the odor of whisky in an out-building nearby and another keg in an old store building within the yard area; that the defendant was in an intoxicated condition; and that no whisky was found in the house. The witness several times repeated his reference to the sink, and to the odor of whisky. This testimony was corroborated by the other witness. However, the latter had been at the front door, and did not in his testimony mention the existence of a sink.

The defendant's extraordinary motion for a new trial is supported by affidavits of several witnesses that there is no sink, plumbing, or water pipes in the kitchen referred to, and by a plat and affidavit of a surveyor to the effect that the point on the premises where the full whisky keg was alleged to be found can only refer to a point on the plat which is not 125 yards, but 238 yards, from the front steps. The defendant shows that he is hard of hearing and did not, on the trial of the case, hear any reference to a kitchen sink; that he did not know of this evidence until his counsel showed him a brief of the evidence; that by reasonable diligence he could not have discovered this testimony earlier; and that his counsel was also ignorant of the fact that his kitchen contained no sink. The defendant did hear the witness's testimony as to the distance from the house where the whisky keg was found, and in his statement to the jury called their attention to the fact that some of them were aware that the distance was at least 200 yards. "``Ordinary motions for new trial on the ground of newly discovered evidence are not favored, and extraordinary motions upon this ground are less favored.' Perry v. State, 117 Ga. 719 (45 S.E. 77)."Lee v. State, 64 Ga. App. 290 (13 S.E.2d 79). "Unless it is reasonably apparent to the judicial mind that the new facts would probably produce a different verdict, a new trial should not be ordered." Young v. State, 56 Ga. 403, 406. "Where the newly discovered evidence is largely impeaching and cumulative in character, the discretion of the trial judge in overruling such a motion will not be disturbed. Thomas v.State, 19 Ga. App. 242 (91 S.E. 287); Darby v. State,24 Ga. App. 269 (100 S.E. 656); Rogers v. State, 129 Ga. 589 (59 S.E. 288)." Brannon v. State, 190 Ga. 203, 205 (9 S.E.2d, 152).

The evidence of the plat cannot be considered newly discovered, and is at most cumulative, as reinforcing the statement made by the defendant at the trial. The affidavits relating to the lack of a kitchen sink merely tend to impeach the State's witness by circumstantial evidence. Even if it were possible to hold that such evidence is "newly discovered," which seems unlikely, it would still fall under the rule stated inTaylor v. State, 31 Ga. App. 193 (120 S.E. 29): "The only effect of so much of the newly discovered evidence as could be treated as such would be to impeach the witnesses for the State, and it is settled law in this State that, even ``though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness, a new trial will not be granted.' Key v. State,21 Ga. App. 795 (95 S.E. 269)." See also Morrow v. State,36 Ga. App. 217 (136 S.E. 92); Wheeler v. State, 149 Ga. 473 (100 S.E. 568); Smith v. State, 41 Ga. App. 373 (153 S.E. 99).

The trial court did not abuse its discretion in overruling the defendant's extraordinary motion for a new trial.

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