1. The motion for new trial in this case does not conform in any of its grounds to the requirements of a motion for new trial on account of newly discovered evidence. In such a motion it must be made to 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. See also numerous cases cited in Vol. 9 Enc. Digest of Ga. Repts., page 683. While we have quoted the language of the Code, this court in Widincamp v. State, 135 Ga. 323 (69 S.E. 535), has construed the first sentence of the statute to mean that, "When newly discovered evidence is relied on as a ground for new trial, it should appear that the defendant and his counsel were ignorant of it until after the trial."
2. "Motions for continuances are addressed to the sound discretion of the trial court; and the ruling of the judge below upon the question will not be disturbed; unless it appears that the refusal to grant the continuance was an abuse of his discretion." Anderson v. State, 190 Ga. 455, 458 (3) (9 S.E.2d 642); Lyles v. State, 130 Ga. 294 (60 S.E. 578); Hilton v. Haynes, 147 Ga. 725 (2) (95 S.E. 220); Harris v. State, 119 Ga. 114 (45 S.E. 973); Cannady v. State, 190 Ga. 227 (9 S.E.2d 241); Code, § 81-1419.
(a) Where a continuance is urged on the ground that counsel were not allowed sufficient time to prepare the case for trial, whether or not the court in ruling on that question has abused its discretion is to be determined by the particular facts and circumstances of the case as then presented.
(b) In several of the grounds for new trial, it is contended that the defendant has been deprived of a substantial right in the refusal of the court to grant a continuance, for the reason that, had the motion for continuance been allowed and had counsel been given more time to prepare his case, he would have discovered the defendant's alleged mental condition; *Page 358 and that, despite the conflict in evidence on that question, he could have made a plea to the jury which might have influenced them to recommend mercy. Under the rule just stated under subsection (a) of this opinion, this contention is without merit, for the reason that it overlooks the fact that the discretion of the trial court was exercised on the basis and under the state of facts as presented at the time the motion for continuance was made, and it would be improper to override the court's discretion in denying a continuance upon grounds not urged at the time the motion for continuance was made, but based on an alleged state of facts not then presented.
(c) In the instant case, the court did not give application to the rule just stated; but proceeded to hear the case on its merits with respect to the mental capacity of the defendant; but, even under this view, that is, treating the motion as though compliance had been made with all rules relative to a motion based on newly discovered evidence, we would not be able to hold as a matter of law that the court abused its discretion in overruling the motion for continuance on the theory that, had the same been granted, the defendant's counsel might have been enabled to discover and present the facts as to the defendant's mental capacity, in order to influence the jury in recommending mercy in connection with their verdict of guilty. As to whether or not such evidence would be admissible for such a purpose as a matter of law, it is unnecessary to decide. See Rogers v. State, 128 Ga. 67, 68 (1) (57 S.E. 227, 10 L.R.A. (N.S.) 999, 119 Am. St. R. 364), where the court appears to hold to the contrary, but which case the plaintiff in error seeks to now overrule.
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents.
No. 15832. JUNE 12, 1947. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. The defendant was indicted for murder and convicted without a recommendation. The evidence consisted of free and voluntary confessions, together with corroboration thereof, that the defendant had killed his father-in-law with an axe. The details of the killing were described in the defendant's own statement. Counsel for the defendant does not argue that the verdict was not supported by the evidence, but insists only upon several special assignments of error, all in effect being based upon the refusal of the trial court to grant a continuance under the circumstances of this case. The record shows that counsel was appointed by the court for defendant on October 17, 1946. The case was called for trial on the morning of October 23, whereupon counsel moved for a continuance on the ground that he wished to procure a witness, and for the further reason that counsel had been continually engaged in court *Page 359 for two days prior to the trial of this defendant, and for that reason had not had sufficient time to properly prepare for trial. Counsel for the defendant was unable to show that the absent person was a material witness, and after consultation with the defendant admitted that the testimony of such witness would probably be inadmissible; and after counsel had made the remark to the court that "I am probably as ready as I can get at this term of the court," the case was ordered to trial and resulted in the verdict indicated. On the hearing of the amended motion for new trial, an affidavit made by a physician was introduced, in which it was deposed that: "At the request of the solicitor-general of the circuit he undertook to make some examination of the mental condition of the defendant, Roosevelt Moore. From this examination deponent is of the opinion that while said defendant has sufficient mind to be denominated sane and to be able to distinguish the difference between right and wrong, he is very seriously mentally undeveloped, and deponent would say that his mental age would correspond approximately to that of an ordinary or average ten-year-old child." Another affidavit was to the effect that the defendant "had the mental development of an average boy of four or five years of age." Another affidavit from one who had employed him for seventeen years was that he had the mental development of an overgrown boy of six or eight years of age, but that the affiant did not wish to convey the impression that he was insane or unable to distinguish between right and wrong. The movant's attorney by affidavit deposed as follows: "At the time he was appointed to defend Roosevelt Moore he had never seen him and knew nothing whatever about him. Deponent conferred with him two or three times before his trial, and while he seemed very indifferent and uncommunicative, deponent did not know nor suspect that he was of so low an order of intelligence, and so mentally undeveloped as he since appears to be; and deponent in presenting the case to the jury did not try to give the jury the impression that he was of anything but ordinary, average intelligence for an uneducated negro. Since his trial and after having a number of further conferences with him, and after having seen and talked with his mother, whom deponent had never seen before the trial, and after talking with other relatives of the defendant, and to other people who had known him for years, it is deponent's opinion that he has no more mind or *Page 360 mental development than a small child, and deponent had in no way been advised of this before the trial." There were affidavits in rebuttal by the sheriff, who had known the defendant for seven years, and who deposed that he appeared at all times a sane man capable of distinguishing between right and wrong and was a man of average intelligence. There was a similar affidavit from the jailor and from three other persons, who knew the defendant well and who set up in detail their observation of his mental alertness and their conclusion that he was not only sane but possessed average intelligence.