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Lawskills.com Georgia Caselaw
JAMES v. THE STATE.
42747.
Assault and battery. Troup Superior Court. Before Judge Knight.
BELL, Presiding Judge.
The trial judge did not abuse his discretion in denying the defendant's motion for new trial based on the ground of newly discovered evidence.
The grant or denial of a motion for new trial based on newly discovered evidence is largely discretionary with the trial judge. The discretion exercised will not be disturbed in absence of abuse. Verdery v. Campbell, 203 Ga. 211 (46 SE2d 66); Loughridge v. State, 202 Ga. 129 (42 SE2d 473); Loomis v. State, 78 Ga. App. 336 (13) (51 SE2d 33).
Here, neither the affidavit of the defendant nor that of his counsel presented facts showing what diligence each exercised in determining what knowledge of the incident the defendant's daughter possessed. It is not shown that she was questioned by either, although as shown by the defendant's testimony on the trial, he knew that the prosecutor had paid attention to her. Also, as shown by the prosecutor's testimony, the prosecutor claimed to have been with the defendant's wife, daughter and two sons shortly before the altercation. The transcript showed that the altercation occurred near the defendant's home. These combined circumstances are enough to have authorized the trial judge's use of discretion in denying a new trial. In addition, the alleged newly discovered testimony is largely cumulative and impeaching and of itself is not persuasive that in all probability a different verdict would result if a new trial were granted and the evidence presented. The showing by the movant is not enough to authorize an appellate court to conclude that the trial judge abused his discretion. See the host of cases annotated under Code 70-204, catchword "Result," p. 233 and catchword "Impeaching," p. 221.
Wright Lipford, Solicitor General, for appellee.
L. M. Wyatt, for appellant.
SUBMITTED MAY 1, 1967 -- DECIDED JUNE 6, 1967.
Thursday December 4 12:50 CST


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