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Wynn ts. The State of Georgia.

goods to Cater's. The evidence is, that cater did not know Flemister, and this being so, there is every probability that Wynn selected the place of deposit, the place where he had been making his own purchases of forage. He may by possibility be innocent, but the jury have judged him by a process of moral reasoning, and all we can say is that their premises justified their conclusion.

Judgment affirmed.

WYNN vs. THE STATE OF GEORGIA.*

1. The verdict is sustained by the evidence. 2. The showing as to diligence with reference to the alleged newly discovered evidence is not satisfactory. October 17, 1888.

Newly discovered evidence. Diligence. Before Judge RICHARD H. CLARK. Fulton superior court. March term, 1888.

Reported in the decision.

F. R. WALKER, for plaintiff in error.

C. D. Hill, solicitor-general, for the State.

SIMMONS, Justice.

Wynn was indicted and found guilty of the offence of burglary, and made a motion for a new trial, upon the ground that the verdict was contrary to the evidence, and upon the further ground of newly discovered testimony. The motion was overruled by the court, and the case was brought to this court for review.

1. The court below did not err in overruling the mo

*BLECKLEY, C. J., did not preside in this case, because of sickness.

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Wright rs. The State of Georgia.

tion for a new trial, on both grounds. The evidence shows that the shop was broken into and entered on a Sunday night, and that Wynn was found in possession of the stolen articles on Monday morning, and gave a false account of how he came into his possession of them. There was abundant evidence to sustain the verdict.

2. We do not think that sufficient diligence was shown to authorize the grant of a new trial on the newly discovered testimony set out in the affidavit of the colored woman. She swears that she saw Wynin purchase the rifle from a little boy on Monday morning. If this was true, he ought to have known who was present when he purchased it, and should have had the witness at the trial. It is astonishing to me how quickly new testimony can be discovered after a person has been tried and convicted. This man was tried on the 27th of June, and in a very few days after, the affidavit of the newly discovered witness is made. If he had shown the same diligence before the trial as he did afterwards, he certainly would have discovered this testimony.

Judgment affirmed.

WRIGHT vs. The State OF GEORGIA.

1. The record should show that the motion to rule out testimony, re

fusal to do which is assigned as error, was made before the conclu

sion of the case to the jury. 2. The verdict was authorized by the evidence.

October 17, 1888.

Practice. Evidence. Verdict. Before Judge R. H. CLARK. Fulton Superior court. March term, 1888.

Reported in the decision.

Sumby 13. The State of Georgia.

F. R. WALKER, for plaintiff in error.

C. D. Hill, solicitor-general, for the State.

BLANDFORD, Justice.

The plaintiff in error was indicted for breaking open a car on the Georgia railroad and stealing therefrom certain goods belonging to Silvey & Company, and was found guilty. He moved for a new trial upon the general grounds that the verdict was contrary to law and to the evidence; and upon the further ground that the court refused to rule out certain testimony. The motion for a new trial was overruled, and he excepted.

1. The record does not show at what time in the proceedings the defendant moved to rule out this testimony; and we think it should affirmatively appear from the record that the motion to rule out the testimony was made before the conclusion of the case to the jury. The defendant could not stand by and speculate and take his chances upon it, and after the jury had been charged with the case, move then to rule it out. We therefore cannot consider this ground. To this effect see Grady vs. The State, 11 Ga. 256, and authorities there cited.

2. We think the verdict of the jury was authorized by the evidence.

Judgment affirmed.

SUMBY vs. THE STATE OF GEORGIA.*

Though some portions of the charge ought not to have been given,

yet the verdict was imperatively demanded by the evidence. October 17, 1888.

*BLECKLEY, C. J., did not preside in this case, because of sickness.

Sumby vs. The State of Georgia.

Verdict. Charge of court. Before Judge RICHARD H. CLARK. Fulton superior court. March term, 1888.

Reported in the decision.

George S. Thomas, for plaintiff in error.

C. D. Hill, solicitor-general, for the State.

BLANDFORD, Justice.

was

The plaintiff in error was indicted for assault with intent to murder by cutting, with a weapon likely to produce death, to wit, a knife, one Oscar Thurman, a little boy about eleven years old. The evidence showed that he stuck the knife in this little boy up to the hilt, and left it there, and that it took two strong pulls by the policeman to draw it out. There was no justifying circumstance, nothing whatever to excuse the act; the evidence shows that it

one of the most reckless, wanton, outrageous acts ever committed in this State. The jury found the defendant guilty, and he moved for a

new trial on the grounds that the verdict was contrary to law and to the evidence, and that the judge who tried the case went out of the record and gave certain charges which were error.

No honest jury with any regard for their oaths would have hesitated a moment to find this man guilty; no other verdict could have been returned. And while we think some parts of the charge of the court ought not to have been given in charge, yet, in the view we take of this case, they do not call for a new trial. The verdict was demanded by the evidence.

Judgment affirmed.

Hardman vs. Xowell et al.

HARDMAN vs. NOWELL et al.

Where the administrator or executor of a deceased person was not a

party to the cause, and the testimony for the plaintiff which defendant sought to rebut did not relate to anything that transpired between defendant and such deceased person, defendant was a competent witness to give such rebutting testimony. December 7, 1888.

Witness. Evidence. Before Judge HUTCHINS. Walton superior court. August term, 1888.

Reported in the decision.

FOSTER & BUTLER, Calvin GEORGE and B. S. EDWARDS, for plaintiff in error.

H. D. McDANIEL and McIIENRY & WALKER, contra.

BLANDFORD, Justice

This was an action of ejectment, brought by Hattie B. Nowell, Willie A. Sheats and Ossie Ray, against B. Hardman. The plaintiff's claimed title to the land in dispute under a deed of gift from the defendant to their father, W. S. R. Hardman, deceased, who was a son of the defendant. The jury found for the plaintiffs.

On the trial in the court below, the plaintiffs introduced witnesses who testified that the defendant had made statements to the effect that he had given the land in dispute to his son, the father of the plaintiffs. This testimony did not relate to what had transpired between the defendant and his son, the latter not being present when the statements testified to were made. The defendant offered, in his own behalf, to testify in rebuttal of this testimony; but the court held that he was an incompetent witness, the son being dead. We think this was error. There is nothing in the evidence

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