Opinion
33573.
DECIDED JUNE 5, 1951. REHEARING DENIED JULY 17, 1951.
Manslaughter; from Baldwin Superior Court — Judge Carpenter. March 1, 1951.
James M. Watts Jr., for plaintiff in error. Marion W. Stembridge, pro se.
C. S. Baldwin Jr., Solicitor-General, contra.
( a) Newly discovered evidence which is only impeaching in character will not authorize the grant of a new trial.
( b) The Court of Appeals is a court for the correction of errors of law only and is not vested with discretionary power as to issues of fact. Blanchard v. Savannah River Lumber Co., 40 Ga. App. 416, 419 ( 149 S.E. 793).
DECIDED JUNE 5, 1951. REHEARING DENIED JULY 17, 1951.
This case first appeared before this court after the plaintiff in error had been convicted in the Superior Court of Baldwin County for the offense of voluntary manslaughter. See Stembridge v. State, 82 Ga. App. 214 ( 60 S.E.2d 491). During the trial of that case a witness for the State, Mary Jane Harrison, testified that the victim, Emma Johnekin, after having been struck and shot by the defendant, entered the third room of the apartment, which consisted of four rooms located one directly behind the other with doorways opening in a straight line; that the victim after entering the third room seated herself on a trunk located therein, and that the defendant followed her into this room and shot her twice more while she was seated on the trunk. After the judgment of this court became final, the defendant filed in the trial court an extraordinary motion for a new trial on the ground of newly discovered evidence. Attached to the extraordinary motion for a new trial and made a part thereof is a statement made by the witness Mary Jane Harrison shortly after the shooting and while she lay in a wounded condition in the hospital, she having also been shot on the occasion on which Emma Johnekin was killed. This statement was made as a dying declaration but the witness recovered and testified at the trial. A part of the statement set up in the extraordinary motion for a new trial and alleged to be material thereto is as follows: "We did not mention a gun. There is one in the house, but it was in the back bed room [third room] near the kitchen and neither of us had got that far — shot at least one time, and Emma never got out of the front bed room until the men had already gone."
The extraordinary motion for a new trial is also supported by the affidavit of J. E. Jones, an investigator connected with the Georgia Bureau of Investigation, to the effect that he turned the statement of Mary Jane Harrison over to the defense attorneys in September, 1950, some months after the conviction, and that he had not known that she had sworn contrary to this statement on the trial or he would have called the matter to their attention at that time. Also in support of the motion were affidavits of the defense attorneys which stated in substance that they did not know until the trial of the case that such a statement had been made, although they made every possible effort to uncover all pertinent evidence. Also attached to the motion were the affidavits of ten of the jurors who convicted the defendant for the offense of voluntary manslaughter on the trial, all of the jurors stating that had the newly discovered evidence consisting of the statement of Mary Jane Harrison which contradicts material portions of her testimony been introduced in evidence on the trial, they would never have agreed to any verdict except one of not guilty.
The extraordinary motion for a new trial was overruled by the trial judge and the exception is to this judgment.
Code § 70-204 states in part as follows: "A new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him." Extraordinary motions for a new trial based on newly discovered evidence are provided for in Code § 70-303. From the affidavits attached to the motion it appears that the defendant's attorneys could not, in the exercise of all diligence, have discovered prior to the trial that the chief witness for the State had made prior contradictory statements which might have cast serious doubt on her credibility as a witness. It further appears that evidence that the defendant and the deceased did not leave the first room would have been material, since on the trial of the case the defendant contended that he shot the Harrison woman in an effort to protect himself against an assault by her, whereas it was the State's contention that as she fled from him to the back of the house he deliberately followed with the intention of killing her. Under Code § 38-1803, one method of impeaching a witness is by proving contradictory statements previously made by her as to matters relevant to her testimony and to the case. When this is done, the effect of the evidence and the credibility of the witness is entirely a matter for the jury to determine. See Reed v. State, 163 Ga. 206 ( 135 S.E. 748). It is thus evident that the newly discovered evidence is no more than impeaching in character, for which reason it falls under the inhibition of Code § 70-204, although in every other respect it meets the requirements of this Code section dealing with the circumstances under which a new trial may be granted on the ground of newly discovered evidence. See Taylor v. State, 77 Ga. App. 532 ( 48 S.E.2d 711); Burke v. State, 205 Ga. 656 ( 54 S.E.2d 350).
(b) It has been frequently held that the ultimate criterion by which the merit of newly discovered evidence should be measured is the probability of a different result. See McDaniel v. State, 74 Ga. App. 5 ( 38 S.E.2d 697); Harper v. State, 50 Ga. App. 298 ( 177 S.E. 886); Todd v. Jackson, 24 Ga. App. 519 ( 101 S.E. 192); Carson v. State, 20 Ga. App. 82 ( 92 S.E. 549); Paden v. State, 17 Ga. App. 112 ( 86 S.E. 287); Nolan v. State, 14 Ga. App. 824 ( 82 S.E. 377); Deason v. State, 11 Ga. App. 759 ( 76 S.E. 73); Fehn v. State, 11 Ga. App. 328 ( 75 S.E. 208); Moore v. State, 11 Ga. App. 259 ( 74 S.E. 1102). These cases must be distinguished from the one at bar because the newly discovered evidence was of a character whose probative value might be assessed by the courts in that it proved a new and different state of facts rather than merely attacking the credibility of the witness, in which latter case its value is within the exclusive determination of the jury. We know of no better way to show such value than by the affidavits of the ten jurors that they would have voted for a verdict of not guilty had this evidence been presented to them. This was matter for the consideration of the trial court, in whose discretion the grant or refusal of an extraordinary motion for a new trial largely rests. See Rogers v. State, 129 Ga. 589 (4) ( 59 S.E. 288); Brown v. State, 141 Ga. 783 (1) ( 82 S.E. 238); Towler v. State, 24 Ga. App. 362 ( 100 S.E. 787). The Court of Appeals, however, is a court for the correction of errors of law only and is vested with no such discretion. It can pass only upon the question of whether the action of the trial court in overruling the extraordinary motion for a new trial was error as a matter of law. The matter being discretionary with him, the judgment was not erroneous.
However, the excellent showing made might constitute a compelling reason for a tribunal invested with discretionary powers such as the Pardon and Parole Board of this State, to take affirmative action which is beyond the purview of this court.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.