1. The ruling upon the demurrer is not here for review, because not excepted to. No error is assigned upon it, and it is not embraced in the motion for a new trial. In strict practice, perhaps, a decision upon demurrer is not proper matter to be included in the motion, 17 Ga., 96 ; but it is not uncommon to give it a place there, and had it been done in this instance, we could possibly have dealt with it. On the actual state of the record and bill of exceptions, however, the overruling of the demurrer seems to have been acquiesced in, and there we leave it.
*5602. The newly discovered evidence pointed to Sam. Williams as the person from whom the accused claimed to have purchased the stolen property. If, in fact, he was the person, the accused had ample opportunity to have identified and named him before the trial, for they were confined in jail together, in the same room for some time, and the presiding judge had seen them seated together in the courtroom. Full diligence would most probably have enabled the prisoner, with the aid of his witness, Jasper Hays, to make use of Sam. for any and every purpose which the new evidence could subserve. He at least might have named him as the source of his possession, if he was its real source; and neither in his statement to the jury, nor in his affidavit concerning the newly discovered evidence, does he name the person from whom he received the property, or declare that he could not name him, or that it was or was not Williams. He nowhere denies that he knew before the trial that Sam. Williams was the man ; and if he did know it, he was bound to say so, and not wait until after his own conviction to implicate his fellow-prisoner. If newly discovered evidence be merely cumulative, or not likely to produce a different verdict, or if the circumstances strongly indicate the want of full diligence on the part of the movant to bring out the alleged new facts, a new trial may be refused.
3. The evidence was enough, taking all the circumstances, to enable the jury to reach a conclusion of guilt. We cannot say it was legally insufficient, and it seems to have been mentally and morally convincing. 61 Ga., 311.
Judgment affirmed,