Shoffeitt v. State , 106 Ga. App. 543 ( 1962 )

Nichols, Presiding Judge.

The defendant was indicted, tried and convicted of manufacturing liquor and thereafter his motion for new trial based on the general grounds and one special ground was overruled. Error is now assigned on such j udgment adverse to him. Held:

1. The one special ground of the motion for new tria-l is based on alleged newly discovered evidence. Movant and his counsel made affidavits stating that they did not know of the alleged newly discovered evidence “before the trial,” and that a diligent investigation did not reveal the same. Movant’s brother William Andrew Shoffeitt’s affidavit was tantamount to a confession that he and not movant had committed the offense for which movant was convicted. The denial of a new trial on the ground of alleged newly discovered evidence is not error. “If they knew of the evidence during the trial, they could not go on with it, take the chances of a verdict in their behalf, and then complain of a verdict against them. Their affidavits should have affirmatively stated that they did not know of the evidence during the trial; failing in this, they have no cause for a new trial on the ground of the alleged newly discovered evidence.” Collins v. State, 153 Ga. 95, 103 (111 SE 733). In the present case there is no affirmative statement in either affidavit that affiant did not know of the evidence during the trial. Such ground is without merit.

Decided September 18, 1962. Stow ■& Andrews, Frank B. Stow, Robert E. Andrews, for plaintiff in error. Jeff C. Wayne, Solicitor General, Frank Strickland, Jr., Charles Dent Bostick, contra.

2. As for the general grounds, there was ample evidence to authorize the verdict and the trial court did not err in overruling the motion for new trial.

Judgment affirmed.

Frankum and Jordan, JJ., concur.