SEPTEMBER 10, 1943.
Robbery by force. Before Judge Anderson. Bibb superior court. April 23, 1943.
F. L. Clements, for plaintiff in error.
T. Grady Head, attorney-general, Charles H. Garrett, solicitor-general, and L. C. Groves, assistant attorney-general, contra.
1. It is provided in the Code, § 70-205, that when a motion for new trial is made on the ground of newly discovered evidence, "If the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced." In this case the newly discovered evidence urged as a ground for new trial was that of a witness; but there being no compliance with the quoted provision of the statute, the judge was not required to consider the affidavits alleging newly discovered evidence, and the discretion of the court in refusing a new trial on the ground of such newly discovered evidence will not be disturbed. Phillips v. State, 138 Ga. 815 (2) ( 76 S.E. 352); Dennis v. State, 146 Ga. 191 (4) ( 91 S.E. 19); Bass v. State, 152 Ga. 415 (11) ( 110 S.E. 237); Cole v. State, 176 Ga. 135 ( 167 S.E. 172).
2. A ground of the motion for new trial complains that the court should have sustained a motion to declare a mistrial, because of prejudicial argument by the solicitor-general, objected to at the time. No ruling of the court thereon is complained of in the bill of exceptions, or reference made therein to any motion for mistrial, nor is any ruling of the court with respect to a refusal to declare a mistrial complained of in the ground of the motion for new trial, that ground merely asserting that "it was error for the court to permit the same without proper reprimand to the solicitor, and without proper instructions to the jury at the time," and that "said remarks warrant the grant of a new trial." This ground affords no reason for granting a new trial.
3. The remaining ground of the motion contends that the court erred in failing to charge the jury on the law of impeachment of witnesses, because of the character of several of the State's witnesses, one of whom admitted that he had been convicted and served time, another was in jail on a robbery charge, and still another had been arrested several times and served time in jail; and further, because of contradictory statements in the testimony of these witnesses. There was no written request for a charge on the law of impeachment of witnesses. In the absence of a timely written request therefor, this ground does not authorize the grant of a new trial because of the failure to instruct the jury on the subject of impeachment of witnesses, credibility of witnesses, or the rule as to reconciling conflicting testimony. Lewis v. State, 125 Ga. 48 ( 53 S.E. 816); Giles v. Voiles, 145 Ga. 853 (2) ( 88 S.E. 207); Elbert County v. Threlkeld, 145 Ga. 133 (3) ( 88 S.E. 554).
4. So far as the general grounds of the motion are concerned, the evidence supported the verdict; and the same having received the approval of the trial judge, his refusal to grant a new trial must be
Affirmed. All the Justices concur.
No. 14609. SEPTEMBER 10, 1943.
Willie Grier was jointly indicted with Willie Robinson and Jack Pharm, alias Jack Parham, for assault and robbery. The indictment was in two counts, the first charging assault upon, and the forcible taking of money from, the person of one Nelson, and the second charging them with the same offense committed against John Sanders Walker. Robinson and Grier were tried jointly, and were found guilty on the second count. Evidence was introduced as to both crimes charged. While there was some conflict in the evidence given by witnesses for the State, some testifying that it was Jack Pharm who snatched the pocket-book from Walker, and others naming another of the defendants with thus taking Walker's money, there was evidence to the effect that all three of the persons indicted seized and held Walker while one of them took his money; and that the money was switched from one to the other in the scuffle. Testimony by a police officer was to the effect that all three of the persons indicted voluntarily offered to "give back" to Walker and Nelson their money, if they would not prosecute them. The jury returned a verdict of guilty. To the overruling of his motion for new trial Grier excepted.