Downs v. State

Full title: DOWNS v. THE STATE

Court: Court of Appeals of Georgia

Date published: Feb 2, 1977

233 S.E.2d 32 (Ga. Ct. App. 1977)

233 S.E.2d 32

Opinion

53195.

SUBMITTED JANUARY 17, 1977.

DECIDED FEBRUARY 2, 1977.

Abandonment of child. Cook Superior Court. Before Judge Lott.

Elsie H. Griner, for appellant.

Vickers Neugent, District Attorney, Terry R. Barnick, Assistant District Attorney, for appellee.

BELL, Chief Judge.

Defendant was convicted of the abandonment of an illegitimate child. A motion for a new trial on grounds of newly discovered evidence was filed. The defendant submitted an affidavit of an acquaintance of both the prosecutrix and the defendant in which it was averred that the prosecutrix had accused other men of the paternity of the child. The motion was denied. Held:

There was no showing that this evidence could not have been discovered by the exercise of ordinary diligence. The mere allegation that the evidence could not have been discovered by ordinary diligence is insufficient. Mills v. State, 193 Ga. 139 ( 17 S.E.2d 719). Secondly, the evidence was purely impeaching in character which will not authorize a new trial. Code § 70-204.

Judgment affirmed. McMurray and Smith, JJ., concur.

SUBMITTED JANUARY 17, 1977 — DECIDED FEBRUARY 2, 1977.