Wise v. State , 24 Ga. 31 ( 1858 )

McDonald, J.

By the Court delivering the opinion.

The plaintiff in error, after conviction, moved in the Court below, for a new trial on three grounds :

1st. Because the verdict was contrary to law.

2d. Because the verdict was contrary to evidence.

3d. Because since his trial, the prisoner has discovered new and material evidence, which he did not know of at the trial, and which no effort on his part could have procured.

[1.] The first ground in this motion is predicated on the allegation that the indictment does not sufficiently charge the offence of larceny from the house. No objection appears to have been made to the'oindictment until after conviction. All exceptions which go merely to the form of the indictment, must be made before trial. Cobb 833. Penal Code, Par. 295. If the prisoner on being arraigned, shall demur to the indictment, the demurrer must be made in writing, lb. Par. 304. If the indictment be defective, the party is not entitled to a new trial, on that account, under the Act of 1854, unless he made his exception to it in thejtime, and in manner pointed out by statute. The presiding Judge should overrule every exception not made in this manner; and it is only in cases when the exception is illegally overruled, that the Act requires the Court to grant a new trial to the applicant.

But the indictment in this case is substantially and almost litterally in accordance with the statute.

[2.] It is insisted that the verdict is contrary to evidence, and that the Court ought, on that account, to have granted, a new trial.

The harness had been deposited in the stable from which it was stolen on the third of July. On the morning of the fourth, it was gone, and on Sunday, a part of it was found in possession of the prisoner. It became his duty, then, to account for the possession, to repel the presumption of his guilt. His exculpatory statements at the time, that a part of it was found on him, and subsequently, were submitted to the jury. They were at liberty, according to the credit that they should think them entitled to, to give faith to them, or disregard them entirely. They did the latter, and were fully justified by his denial of all knowledgejpf a part of the harness, not on the horse when he was detected, and his almost immediately giving an order for it, to Larkin, in whose possession it was found.

[3.] In support of the ground, that since the trial the prisoner had discovered new and material evidence, his own affidavit and the affidavits of William Clark, Arthur Walsch and James Larkin are submitted to the Court. The affidavit of James Larkin is not'insisted on. The evidence of Arthur Walsch, as set forth in his affidavit furnishes but slight evidence of the innocence of the prisoner. However strong it might be, or of whatever value, it is very certain that by the use of the least diligence, he might have informed himself of it. He made no inquiry, at the stable, of the owners, or employees, to'ascertain the manner that the harness was taken, or the difficulties and dangers a stranger would encounter, in entering the stable to commit a theft.

The affidavit of William Clark, is entitled to more consideration. He states that he was in’ the bar-room of the prisoner on the night of the 3d of July, 1856, when a negro boy slave named Lloyd came in with a harness, which he said he loaned to prisoner to be used the next day. Witness left the State soon after, and returned on the Friday before he made the affidavit. The prisoner deposes that he had no knowledge that the persons making these affidavits could establish the facts sworn to by them until after his trial; and while it is apparent that, by the use of common diligence, he could have informed himself of the proof which could bé made by Larkin and Walsch, it does not appear that he could, by the use of any sort of diligence, have known that Clark knew the facts deposed to by him. He does not depose that Clark was in his bar-room on the night the harness was carried there, but to the statement of Clark that he was there. It is not probable that he could remember every person who passed in and oirt of a place of so frequent resort as that where the harness was carried. We will not undertake to pass upon the value of Clark’s evidence to the defence of the prisoner in another trial. It is apparently material to it, and the prisoner does not seem to have been guilty of negligence in not producing it on the former trial, and on that ground, therefore, the judgment of the Court below is reversed.

Judgment reversed-