Opinion
23822.
SUBMITTED DECEMBER 14, 1966.
DECIDED JANUARY 5, 1967.
Extraordinary motion for new trial. Fulton Superior Court. Before Judge Dyer.
John C. Fulford, pro se, William T. Brooks, for appellant.
Lewis R. Slaton, Solicitor General, J. Walter LeCraw, Amber W. Anderson, Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, John A. Sligh, Jr., for appellee.
The appellant, John C. Fulford, was convicted in Fulton Superior Court of robbery by use of an offensive weapon and sentenced to 10 years in prison. His motion for new trial was denied by the trial court and on appeal to this court was affirmed. Fulford v. State, 221 Ga. 257 ( 144 S.E.2d 370). He thereafter mailed to the trial judge an extraordinary motion to vacate and set aside the judgment and sentence on the ground of newly discovered evidence and attached to his motion an affidavit of a fellow prisoner, who was serving a sentence for robbery in which he stated that he committed the robbery for which appellant was serving and that appellant did not participate therein. The trial court entered an order refusing to issue a rule nisi to show cause why the motion should not be granted, reciting therein that after investigation of the credibility of the affiant he reached the opinion that said affiant is not worthy of belief. The court ordered that the motion and his order thereon be filed with the clerk of the superior court and a copy mailed to appellant. Thereafter, on request of the appellant, the court appointed counsel to represent him in appealing his case to this court, who filed this appeal for him. Held:
The motion is in reality an extraordinary motion for new trial based on newly discovered evidence. Code § 70-303; Cox v. Hillyer, 65 Ga. 57; King v. State, 174 Ga. 432 (1) ( 163 S.E. 168). The trial judge, in passing upon the motion, is vested with wide discretion, and his judgment thereon will not be disturbed unless an abuse of discretion is clear. Fields v. State, 212 Ga. 652 ( 94 S.E.2d 694); Loughridge v. State, 202 Ga. 129, 130 ( 42 S.E.2d 473).
"When an extraordinary motion for new trial is entirely without merit, it is proper for the judge to decline to entertain the same and to refuse to grant a rule nisi thereon." Harris v. Roan, 119 Ga. 379 (5) ( 46 S.E. 433); Cox v. State, 19 Ga. App. 283 (2) ( 91 S.E. 422); Loomis v. Edwards, 80 Ga. App. 396 ( 56 S.E.2d 183). Where, as here, the sole ground for the extraordinary motion for new trial is the statement of another prisoner that he committed the crime for which the appellant was convicted and that appellant did not participate therein, the motion is entirely without merit, for if a new trial were granted, the confession of the third party would not be admissible evidence. See Bryant v. State, 197 Ga. 641, 656 ( 30 S.E.2d 259) where this court held: "It is a well settled principle of law in this state that statements made by another person to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial. This principle has been applied where it was sought to introduce the confession of one who was not accused of having any connection with the crime. Moughon v. State, 57 Ga. 102 (3); Daniel v. State, 65 Ga. 199; Lowry v. State, 100 Ga. 574 ( 28 S.E. 419); Beach v. State, 138 Ga. 265 (2) ( 75 S.E. 139); West v. State, 155 Ga. 482 ( 117 S.E. 380); Johnson v. State, 188 Ga. 662 ( 4 S.E.2d 813)." This court in Bryant v. State, supra, at p. 657, refused to overrule the foregoing ruling saying: "This court declines to do so [overrule], as we consider this ruling sound, and in accordance with the overwhelming weight of authority on this subject. 20 AmJur 428, § 495; 35 ALR 441; 48 ALR 348; 37 LRA (NS) 345; 16 CJ 643, § 1278; AC 1913E, 722." See Cobb v. State, 219 Ga. 388 ( 133 S.E.2d 596). Also in this connection see Briscoe v. State, 95 Ga. 496 ( 20 S.E. 211) where this court held: "Newly discovered evidence that another person has admitted that he and certain others committed the offense, is no cause for a new trial, inasmuch as the admissions would not be competent evidence in behalf of the accused were a new trial ordered. Kelly v. State, 82 Ga. 441, and cases cited. The evidence warranted the verdict, and there was no error in denying a new trial."
Accordingly, the court did not err in refusing to entertain the motion and to issue a rule nisi thereon.
Judgment affirmed. All the Justices concur.