The court did not abuse its discretion in overruling the defendant's extraordinary motion for new trial based on newly discovered evidence.
(a) Motions for new trial based on newly discovered evidence are not favored by the law. Extraordinary motions based on that ground are viewed by the courts with even less favor and a stricter rule is applied.
(b) No abuse of discretion is shown where an extraordinary motion for new trial is made on the ground of newly discovered evidence and on a counter showing the alleged new evidence is contradicted.
(c) An extraordinary motion for new trial based on the ground of newly discovered evidence should not be granted unless it is clearly apparent that the new evidence will likely produce a different verdict on another trial.
(d) After the accused has been convicted, a new trial denied him, and that judgment has been affirmed, an extraordinary motion for new trial on the ground of newly discovered evidence is addressed to the sound legal discretion of the trial judge, and his judgment will not be controlled unless it clearly appears from the record that his discretion has been abused.
No. 16267. JULY 15, 1948. Freddie Parks, alias Fred Alexander, was indicted for the murder of Mrs. Leroy Atchley. The indictment charged that the offense was committed in Floyd County on November 19, 1945. The accused has been twice convicted, without recommendation, of the offense charged. On the first appearance of *Page 42 his case in this court, it was held by a divided bench that the evidence was not sufficient to show his guilt. Parks, aliasAlexander v. State, 202 Ga. 84 (42 S.E.2d 103). When here the second time, and also by a divided bench, a judgment overruling his motion for a new trial was affirmed. Parks, alias Alexander, v. State, 203 Ga. 302 (46 S.E.2d 504). Since the judgment of affirmance was rendered by this court the accused has filed an extraordinary motion for new trial on the ground of newly discovered evidence. The exception here is to a judgment overruling that motion.
On the last trial of the accused, it was shown by the State's evidence that Mrs. Atchley was last seen alive at about 1:30 p. m. on November 19, 1945, by a rural letter carrier who delivered to her a C.O.D. package at that time; that her body was found the following morning about 8 o'clock near a side dirt road leading from the Huffacre road to the home of Tom and Eula Parks; and that, from the condition of the body when found, it was estimated that she had been dead from five to twenty hours. In his statement to the jury, the defendant admitted that he was at the home of Tom and Eula Parks, his relatives, on November 19, 1945, but said that he left there immediately after the 12:30 p. m. news broadcast; that he walked from there to the Huffacre road, which was only a short distance, where he caught a truck driven by a colored person unknown to him; that he rode the truck from there to Rome, getting off in front of the county courthouse; and that after spending some time in Rome he caught a bus and went to his home near Lindale, which, according to the record, is some 14 1/2 miles from the place where the body of Mrs. Atchley was found.
Attached to and made a part of the extraordinary motion for new trial, are affidavits by Robert Couch, Ruth Couch, Tom Lynch, and Jacob Lynch; also the required supporting affidavits. Affiants Robert and Ruth Couch in substance said: They reside about 400 yards from the place where the body of Mrs. Atchley was found. On the evening of November 19, 1945, at about 7 o'clock, or a few minutes later, they heard for some four or five minutes the screams of a woman in the direction of the place where Mrs. Atchley's body was found the following morning; the screams were unusual and definitely indicated that the person *Page 43 screaming was in distress or was being attacked by something or somebody. They did not then tell about the screaming because of certain threats which had been made by interested parties in the community against Tom and Eula Parks, the accused Freddie Parks, and anyone else who offered to help the accused in his defense. Affiants Tom and Jacob Lynch, father-in-law and brother-in-law respectively of the accused, in substance said: The accused left their home — the place where he also resides — early on the morning of November 19, 1945, to visit his relatives, Tom and Eula Parks, who reside about 5 1/2 miles northwest of Rome, just off of the Huffacre road. He returned on the same day at from 5 to 5:30 in the afternoon. Upon his return they noticed nothing unusual about his conduct; he did not seem to be excited, and they saw nothing unusual about his clothing. He helped Jacob Lynch cut wood until about dark; and did not leave their home again that day or night. It is not insisted that the accused and his counsel did not know of the facts contained in the affidavits of Tom and Jacob Lynch prior to trial, but it is contended that the evidence of these affiants did not become relevant or material until the information contained in the affidavits of Robert and Ruth Couch was discovered.
The State made a counter showing, and called Robert and Ruth Couch as witnesses. Among other things, Ruth Couch testified: "I don't know that anybody made any threats at any time against myself or Bob (Robert Couch), or Freddie Parks or Tom or Eula Parks. No, I don't know how far it is to where Mrs. Atchley was found. I have never been over that road. I was told that Mrs. Atchley's body was found about 400 yards from our house. No, I do not know how far it is, because I never did measure it. I was never told how far it is to where she was found. How did I know to put it in the affidavit? I did not write the affidavit. I did not see the affidavit, I do not know what was in it. I knew I heard the scream, and that is all I was intending to say in the affidavit because that was all I knew to say. No, I didn't read it. No, it was not read to me. I signed it. . . Nobody ever made any threats to me." When this witness was cross-examined, she said: "I don't remember whether it was read to me or not, it has been so long I just don't *Page 44 remember things like that. Yes, I knew it contained the fact that I heard those screams, I don't remember anything else in there." The witness also said, "Well, I could not tell you who that was screaming."
Robert Couch in substance testified that, about three weeks after the death of Mrs. Atchley, he told some of his neighbors about hearing the scream of a woman on the night before the body of Mrs. Atchley was found, and that Arthur Wood came over and told him that they wanted him to stay out of it, that he was shielding the accused, and that he [witness] was not going to have anything to do with it. The witness admitted that he had also named a Mr. Hardin who had threatened him, but denied that he had told any one that Mr. Idus Adams, his neighbor, had made any threats against him. He further testified that he saw Mrs. Atchley at her home, between her house and her well, about 3:30 p. m. on November 19, 1945.
H. M. Long testified in substance that Robert Couch told him and other named parties that he had been threatened with reference to the Freddie Parks case by Arthur Wood, Idus Adams, and a Mr. Hardin whose given name he did not recall. This witness also testified that it is a half mile from the Couch home to the place where the body of Mrs. Atchley was found.
Vaughn Terrell testified that Robert Couch told him on April 10, 1948, that he saw Mrs. Atchley on November 19, 1945, about 2:30 p. m. standing at her mail box; that the mail was late that day; and that after getting her mail she went back to her home and that was the last time he saw her.
Arthur Wood, Idus Adams, J. W. Hardin, and J. C. Hardin, all being residents of the community in which Robert and Ruth Couch reside, testified that they had made no threats against Robert and Ruth Couch or anyone else regarding the Parks case. Arthur Wood also testified that, since the witness Robert Couch had falsely accused him of having made threats against him, he would not believe him on oath. The State did not contend that the alleged newly discovered evidence as given by Robert and Ruth Couch was known to the accused or his counsel prior to trial, or by the exercise of reasonable diligence could have been discovered by them. (After stating the foregoing facts.) The extraordinary motion for new trial in the case at bar is not challenged as to form or as to any requirements of the Code. It is contested solely on the merits. One question only is presented for decision by the writ of error, namely, did the trial judge abuse his discretion in refusing to grant the accused a new trial on his extraordinary motion based solely upon the ground of newly discovered evidence? In determining this question there are certain well-established and controlling principles of law which we must apply to the facts in the present case. They are:
1. Motions for new trial based upon newly discovered evidence are not favored by the law. At our October term, 1851, in Berry v. State, 10 Ga. 511, this court announced that rule. By numerous decisions since then it has consistently followed it.Brannon v. State, 190 Ga. 203 (9 S.E.2d 152), is one of the more recent pronouncements of the rule. It should, however, be kept in mind that this rule applies to ordinary or regular motions for new trial. In Brown v. State, 141 Ga. 783, 786 (82 S.E. 238), it was held that the rule announced in theBerry case, supra, applies with even greater force where one has been regularly tried and convicted, has made a motion for new trial, failed to obtain it, and the judgment has been affirmed.
2. Where an extraordinary motion for new trial is made upon the ground of newly discovered evidence and by a counter showing the evidence in support of the motion is contradicted, it is no abuse of discretion to deny the motion. Morris v. State,177 Ga. 365 (170 S.E. 217); McMullen v. State, 200 Ga. 812 (38 S.E.2d 424).
3. Unless it is reasonably apparent from the record that the alleged newly discovered evidence will likely produce a different verdict upon another trial, a motion for new trial based upon that ground should not be granted. Young v. State, 56 Ga. 403;Burge v. State, 133 Ga. 431 (66 S.E. 243); Brown v.State, supra; Pulliam v. State, 199 Ga. 709 (35 S.E.2d 250). It is always incumbent upon the party who asks for a new trial upon this ground to satisfy the court that a different result will likely be obtained when the new evidence is given on a subsequent trial. Berry v. State, supra. *Page 46
4. After the accused has been convicted, a new trial denied him, and that judgment has been affirmed, an extraordinary motion for new trial on the ground of newly discovered evidence is addressed to the sound legal discretion of the trial judge, and his judgment will not be controlled by this court unless it clearly appears from the record that his discretion has been abused. Miller v. State, 119 Ga. 561 (46 S.E. 838);Bradford v. Brand, 132 Ga. 642 (64 S.E. 688); McCoy v.State, 193 Ga. 413 (18 S.E.2d 684); Pulliam v. State, supra.
Tested by these rules, can we now say as a matter of law that the trial judge abused his discretion in rendering the judgment complained of? We are not inclined to think so. It so happens in the present case that the trial judge resides in the county from which this case comes. He saw, heard, and very probably knew all of the witnesses who testified both in support of and against the motion. Twice before he had heard the evidence of the State and the accused, including the defendant's statements. Being the trior of the issue made by the motion and the counter showing, it was peculiarly within his province to pass upon the credibility of the witnesses who testified and to say what weight should be given their testimony. Upon him the law places the responsibility of determining the materiality of the alleged newly discovered evidence and the probability of its producing a different verdict if a new trial should be granted. The law vests in him a broad discretion in passing upon such motions and withholds from this court any right to control his judgment unless it clearly appears from the record that he has abused his discretion. Anxious to properly perform our duty, we have carefully and painstakingly examined the record, and after doing so we can not hold that any abuse of discretion is shown. In other words, there is nothing in the record that makes it so clear and certain as not to admit of dispute that the judge erred in overruling the motion on the ground alleged, or, to put it differently, the record does not disclose that the judge abused his discretion in overruling the motion. Accordingly no error is shown.
Judgment affirmed. Jenkins, Chief Justice, Duckworth,Presiding Justice, Atkinson, Wyatt, and Head, Justices, and JudgeLilly concur. *Page 47