Opinion
41793.
ARGUED FEBRUARY 8, 1966.
DECIDED FEBRUARY 24, 1966.
Larceny of automobile. Hall Superior Court. Before Judge Kenyon.
Robinson, Thompson, Buice Harben, Sam S. Harben, Jr., for appellant.
Jeff C. Wayne, Solicitor General, C. Frank Strickland, Jr., for appellant.
"Where, from the affidavits submitted in connection with a motion for a new trial, based on newly discovered evidence, it appears that the testimony relates to material facts which, upon another investigation, would likely produce a different result, and could not, by the exercise of ordinary diligence, have been obtained at the trial, a new trial should be granted. This is true even though it be impeaching in its character, if it tends to establish a new and independent fact indicating the defendant's innocence." Saylors v. State, 9 Ga. App. 227 (1) ( 70 S.E. 975).
ARGUED FEBRUARY 8, 1966 — DECIDED FEBRUARY 24, 1966.
Lonnie Moore, along with three other persons, was indicted for larceny of an automobile. The other three persons entered pleas of guilty and upon the trial of the defendant one of the co-indictees testified for the State. The evidence of this witness did not place the defendant present when the automobile was stolen but did implicate him with the theft by placing him with the automobile later when it was being "stripped." This stripping process is the removal of parts from the automobile for sale, leaving the body shell abandoned — usually in a rural area. There was other evidence that the defendant's automobile was used by the persons who actually stole the automobile and to transport the parts "stripped" from the stolen automobile. The jury returned a verdict of guilty and thereafter the trial court overruled the defendant's amended motion for new trial. On appeal the defendant complains of the charge, that the testimony of the co-defendant was not corroborated, and that the trial court erred in failing to grant the defendant's motion for new trial based upon alleged newly discovered evidence.
1. In support of the ground of the amended motion for new trial based upon newly discovered evidence the defendant attaches affidavits of two witnesses who placed him in Sunnyside, Ga. (some seventy miles from Gainesville, Ga. where the theft and stripping operation occurred) at the time the stolen automobile was being stripped. These affidavits are supported by the affidavits required by the decisions of the Supreme Court from which Code § 70-205 (which was repealed by the Act of 1965, Ga. L. 1965, pp. 18, 39) was codified, and no countershowing was made by the State.
Under the decisions of the Supreme Court in Fellows v. State, 114 Ga. 233 ( 39 S.E. 885), and of this court in Saylors v. State, supra, and Graham v. State, 86 Ga. App. 896 ( 73 S.E.2d 46), and similar cases, the evidence as to alibi was of the nature which requires a new trial. While it is true that the defendant made reference in his unsworn statement as to his whereabouts at the time he was supposed to be "stripping" the automobile, there was no evidence to support his statement, and as to diligence, the one witness who placed him at the scene of the "stripping operation" was a co-indictee whose name did not appear on the indictment as a witness. Any inquiry as to the time of the theft, so that alibi witnesses could be sought, would have shown the actual theft took place hours before the time the defendant was implicated. Accordingly, the trial court erred in denying the defendant a new trial on the basis of newly discovered evidence.
2. The evidence adduced upon the trial of the case did not authorize the charges upon lesser crimes as contended by the defendant. Under the evidence adduced he was guilty or not guilty of the crime charged.
3. Inasmuch as the case must be tried again and the evidence may not be the same on such trial the issues raised by the enumeration of errors that the verdict was contrary to the evidence, contrary to law and without evidence to support it will not be passed upon.
Case remanded for new trial. Hall and Deen, JJ., concur.