Opinion
40750.
DECIDED JULY 13, 1964.
Burglary; extraordinary motion for new trial. Upson Superior Court. Before Judge McGehee.
Warren E. Moultrie, pro se. Andrew J. Whalen, Jr., Solicitor General, contra.
"When a motion for new trial is made on the ground of newly-discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. If the newly-discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced." Code § 70-205. An extraordinary motion for new trial on the basis of newly discovered evidence must show that the evidence is not merely cumulative or impeaching, for which reason a certified copy of the brief of evidence on the trial of the case is an absolute prerequisite to a valid motion. Fields v. State, 212 Ga. 652 ( 94 S.E.2d 694). The motion here, filed over eight years after defendant's conviction, contains no brief of evidence. There is no affidavit of counsel, and it does not appear that counsel was not present assisting the defendant at the trial. There is no statement that the existence of the alleged new evidence was not known at or before the trial, and there are no supporting affidavits.
The extraordinary motion for a new trial was properly overruled.
Judgment affirmed. Nichols, P. J., and Hall, J., concur.