Opinion
34360.
DECIDED JANUARY 24, 1953. REHEARING DENIED FEBRUARY 12, 1953.
Violating liquor law; from Clarke Superior Court — Judge West. September 13, 1952.
S. S. Robinson, James R. Venable, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
An extraordinary motion for a new trial on the basis of newly discovered evidence must, among other things, show that the new evidence is of such strong probative value as to probably require a different result upon another trial of the case; and where such evidence is itself compatible with the guilt of the accused, and is further attacked by counter-affidavits, the refusal of the court to grant a new trial thereon does not constitute an abuse of discretion.
DECIDED JANUARY 24, 1953 — REHEARING DENIED FEBRUARY 12, 1953.
James Echols was indicted, tried, and convicted in the Superior Court of Clarke County for the offense of possessing nontaxpaid liquor. His motion for new trial was overruled, and he thereafter filed an extraordinary motion for new trial, the overruling of which is assigned as error.
The conviction was based upon circumstantial evidence which, when construed most favorably to the verdict, was in effect: that the defendant's house was separated from another house, thought at the time to be unoccupied, by a ravine thickly grown with vines and bushes and almost impenetrable; that a well-defined trail led from the defendant's house into this ravine and ended at a small ditch, just across which the officers found buried 303 half-gallon jars filled with non-taxpaid liquor; that this cache was 39 steps from the defendant's porch; that the officers led the defendant to the location, where he made a statement, before he got in view of the whisky, that the ditch was the boundary line of his property and it was across the ditch; that in addition they found in the defendant's barn, 800 half-gallon jars, some with the odor of alcohol, and wine bottles, and in a coal shed annexed to the garage, other fruit jars and empty beer bottles, some empty pint bottles, a post-hole digger, and others tools for digging which appeared to have been recently used. Officers who went to the house testified that, as they waited at the door, they heard a sound as though something had hit a pan and, on entering, found a funnel and a wash pan containing a small amount of water and an empty drinking glass smelling strongly of whisky.
Katie Lou Jackson testified for the defendant that she rented the little house adjoining the defendant's; that she was not living there in December, but her brother, Spence Brown, was living there; and that there was a path from the road which led behind her house and another from the rear of her house to that of the defendant.
The extraordinary motion for new trial is based on affidavits of this witness and her brother, Spence Brown, to the effect: that they knew one James Washington, whose reputation for selling non-taxpaid liquor was bad; that Washington was frequently seen in the vicinity of the cache of whisky; and Brown further deposed that Washington had several times emerged from that vicinity and had come by his house with a drink of corn liquor in a fruit jar; that, about a week before the arrest, he had gone into the bushes with a large carton carried in both hands, and emerged shortly thereafter with it in one hand and a half-gallon jar of whisky in the other, from which he gave deponent a drink. The State offered counter-affidavits of a county policeman, the Sheriff of Clarke County, and an investigator of the Alcohol Tax Unit, the substance of which was that the defendant and Spence Brown were known to have previously operated a liquor business together; that their reputations were had and neither was worthy of belief; that a search of the house and inquiries at the time of the arrest convinced them that the house was entirely uninhabited, and that there was no sign of travel to the cache of whisky except from the defendant's home.
In Moon v. State, 51 Ga. App. 70 ( 179 S.E. 589), it is held: "Where a ground of a motion for a new trial based on newly discovered evidence is filed, and a counter showing is made, so that a conflict arises as to the material facts upon which the ground is based, a reviewing court will not, except in a case of manifest abuse of discretion, reverse the finding of the trial judge." See also Ballard v. Harmon, 202 Ga. 603 ( 44 S.E.2d, 260); Angry v. State, 17 Ga. App. 161 ( 86 S.E. 403). It is the contention of counsel for the defendant that this rule does not apply where the counter-affidavits do not deny facts stated in the affidavits of Brown and his sister that they saw Washington, whose reputation for liquor was bad, in the vicinity where the moonshine was buried. The counter-affidavits do state, however, that no bootlegger named James Washington is known to deponents, who are law-enforcement officers; and they also contain contradictory statements made by Katie Lou Brown at the time of the arrest, and attacks upon the veracity of her brother, and contradictory statements which, if believed, would lead to the conclusion that Brown was not living in the house at the time his affidavit shows him to have been there. If it should be said that the counter-affidavits fail to deny positively the statements concerning the presence of James Washington, it may be argued with equal force that the presence of Washington at the time and place in question is not incompatible with the guilt of the defendant, since Washington might well have been either buying from or selling to the defendant, or might have been engaged in the business with him. Aside from the question of whether or not the defendant used proper diligence in obtaining the testimony he now seeks to use (see Williams v. State, 192 Ga. 247, 254, 15 S.E.2d 219; Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (10), 118 S.E. 435), it must appear that such newly discovered evidence is of such strong probative value as to render it probable that a different result would have been reached had the jury had it before them. McDaniel v. State, 74 Ga. App. 5 ( 38 S.E.2d 697); McCoy v. State, 193 Ga. 413 ( 18 S.E.2d 684). The trial judge did not abuse his discretion in holding in effect that such evidence did not measure up to this standard, and in overruling the extraordinary motion for a new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.