Opinion
31852.
DECIDED FEBRUARY 3, 1948. REHEARING DENIED FEBRUARY 21, 1948.
Extraordinary motion for new trial; from Coweta Superior Court — Judge Boykin. September 9, 1947. (Application to Supreme Court for certiorari.)
Walter D. Sanders, James R. Venable, for plaintiff in error.
L. M. Wyatt, Solicitor-General, contra.
In a motion for a new trial on newly discovered evidence or an extraordinary motion for a new trial on newly discovered evidence, the ultimate criterion by which the merit of such testimony should be measured is the probability of a different result should a new trial be granted.
DECIDED FEBRUARY 3, 1948. REHEARING DENIED FEBRUARY 21, 1948.
J. P. Kryder was convicted, in Coweta Superior Court on September 10, 1946, of car breaking, and his punishment was fixed at from three to five years in the penitentiary. He filed his amended motion for a new trial, which was overruled. The defendant assigned error on the overruling of his motion, and brought the case to this court for review. This court, on March 15, 1947, affirmed the judgment of the superior court. Kryder v. State, 75 Ga. App. 34 ( 41 S.E.2d 824). At a subsequent term of Coweta Superior Court, the defendant filed his extraordinary motion for a new trial. A hearing was had thereon and the extraordinary motion was overruled. The defendant excepted to the judgment overruling his extraordinary motion for a new trial. On this judgment he assigns error.
The extraordinary motion is based on an affidavit of Vel Sewell. There are proper supporting affidavits. In the original trial the defendant was convicted of car breaking; several railroad cars were broken and entered. The evidence showed fingerprints on certain packages in the cars broken into. Fingerprints of the defendant taken after his arrest and those on the packages in the cars broken and entered showed that they were those of the defendant. The evidence further showed that a police officer directly identified the defendant as fleeing away from the scene where the cars were broken into, and that he fled therefrom into a swamp; that bloodhounds were immediately put on his tracks and that the defendant was caught with the aid of the dogs about 200 yards from the scene of the car breaking. The defendant at the time of his arrest was wet up to his knees. He had a gash on his forehead. The officer testified that he carried the defendant to the hospital where a stitch was taken. The defendant did not explain how he received the gash on his head until he made his statement. In his statement he denied the car breaking and stated that he and Vel Sewell, with a person whom the defendant did not know, called "Bill" or "Phil" (we shall hereinafter refer to him as "Bill"), left Atlanta in the defendant's car and drove toward Newnan, Georgia; that on the way they drank beer and whisky and that after they reached Newnan the person named Bill and the defendant engaged in a difficulty and the unknown person Bill struck the defendant on the head, knocking him unconscious, and the defendant knew nothing that happened thereafter until after he was arrested. He stated also that Vel Sewell, who makes the affidavit of the newly discovered evidence, promised the defendant to be at the trial, and that he went by Sewell's house the Sunday before the trial was to be held the following week, and was informed that Sewell would not go to the trial and testify on behalf of the defendant for the reason that he was afraid he would be arrested for car breaking. No subpoena was asked for Vel Sewell at the original trial, and no motion for continuance was asked on account of his absence, although the defendant himself related in his statement to the jury practically everything which is now contained in the affidavit of Sewell. The gist of Sewell's affidavit, which is the basis for the extraordinary motion, is to the effect that the defendant and the unknown Bill did have a fight, and Bill knocked the defendant to the ground, and that the defendant after having been knocked to the ground, got up and fled, and Vel Sewell made his way back to Atlanta and did not know what happened thereafter. After the defendant was arrested his car was found parked near the scene of the crime, and the evidence for the State further showed that the defendant made no explanation as to the gash on his head to any of the State's witnesses until he made his statement at the trial.
We have given the gist of the evidence on the trial and that of the affidavit of Vel Sewell briefly, but we think fully. The grant of an extraordinary motion for a new trial on newly discovered evidence is discretionary with the trial court, and its judgment will not be disturbed in the absence of an abuse of this discretion. Rogers v. State, 129 Ga. 589 (4) ( 59 S.E. 288); Brown v. State, 141 Ga. 783 ( 82 S.E. 238); Towler v. State, 24 Ga. App. 362 ( 100 S.E. 787). The statute contemplates that in an extraordinary motion the applicant must show that the facts on which it is based are those which do not ordinarily occur in human affairs. Cox v. Hillyer, 65 Ga. 57 (2); Harris v. Roan, 119 Ga. 379 (2) ( 46 S.E. 433); Wheeler v. State, 149 Ga. 473 (2) ( 100 S.E. 568); King v. State, 174 Ga. 432 (1) ( 163 S.E. 168); Colwell v. State, 46 Ga. App. 55 ( 166 S.E. 445). Motions for new trials on extraordinary grounds are not favored. Coggeshall v. Parks, 162 Ga. 78 ( 132 S.E. 632); Colwell v. State, supra. A stricter rule is applied to extraordinary motions on grounds of newly discovered evidence than to ordinary motions on those grounds. Jackson v. Williams, 149 Ga. 505 (2) ( 101 S.E. 116); Davis v. State, 41 Ga. App. 366 (1) ( 153 S.E. 203). It is contemplated in extraordinary motions for a new trial on grounds of newly discovered evidence that full diligence be shown to procure the evidence before the trial. Again, this court in McDaniel v. State, 74 Ga. App. 5 ( 38 S.E.2d, 697), said: "The real ultimate criterion by which the merit of such testimony [newly discovered evidence] should be measured is the probability of a different result; and when that probability appears, the ends of justice require that a new trial be granted." There are many other decisions sustaining the principle herein referred to, but we deem it unnecessary to call attention to any others of them. We might add, however, as to the last proposition that the court did not abuse its discretion in overruling the motion, on the ground that, even conceding that Vel Sewell had testified in the first trial or should be permitted to testify in another trial, there is a probability of a different result or a different verdict. Sewell in his affidavit states that he did not know what the defendant did after Sewell left him. He does not even state that the defendant received the gash on his head when Bill hit him. We think that the jury had a right to conclude, and would still have the right to conclude, that the defendant received the gash on his head as he jumped from the cars or as he ran between them or in his flight from the dogs in the swamp.
The court did not err in overruling the extraordinary motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.