Avery v. State , 26 Ga. 233 ( 1858 )

By the Court.

Lumpkin J.

delivering the opinion.

We have carefully examined the various grounds upon which the motion for a new trial was moved in this case; and feel satisfied that the Court was right in refusing the application.

As to the fifth ground, that the Court erred in holding, that the defendant could be put upon his trial again, when at a previous Term of the Court, there had been a mistrial declared, without the consent of the accused, this Court held in the case of Williford against the State, 23 Ga. Rep. 1, that at what time, and under what circumstances the Court would discharge the jury from the further consideration of of a criminal case, is a question left pretty much to its own discretion, and that the doctrine, that a mistrial amounts to an acquittal, has long since been exploded.

As to the newly discovered evidence, no reason is shown, why it was not offered on the trial. The witnesses were living in the immediate vicinity of the defendant; and the alibi, of course, well known to him, .if indeed it was true. That is not all: the newly discovered evidence is reconcile-able with the other proof. There is really no conflict. It is a mere difference of opinion, as to the time of day when the shooting took place, about which, the witnesses might very naturally be mistaken. In this remark, we do not in-elude the testimony of the son, respecting which, delicacy forbids that we should make any comment.

But all this proof, if introduced, could not change the verdict. The testimony is overwhelming, that John Avery discharged the gun. He ivas distinctly seen and fully identified, both by teacher and pupils, who knew him intimately and well. And that is not all: the crime was committed in the execution of a previous threat. The accused suffered himself to be overpowered by the worst passions of our nature.

The judgment must be affirmed.

Judgment affirmed.