Opinion
8 Div. 63.
April 6, 1961. Rehearing Denied May 18, 1961.
Appeal from the Circuit Court, Colbert County, C. K. Delony, J.
Howell T. Heflin, Tuscumbia, for petitioner.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., opposed.
In its opinion, the Court of Appeals states that "A motion for a new trial rests in the sound discretion of the trial court, and its action will not be disturbed on appeal except where abuse of discretion is clearly shown." When considered in its context, it is apparent that the Court of Appeals was considering a motion for a new trial on the ground of newly discovered evidence. The authorities cited by the Court of Appeals support the statement of the Court of Appeals when so considered. We add that the same statement appears in Nichols v. State, 267 Ala. 217, 100 So.2d 750. In that case, as here, the reference is to newly discovered evidence and should be so restricted.
Writ denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.