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Duncan vs. Anderson.

no sense was Huff the servant of Anderson, nor in any way subject to his control.”

To this judgment plaintiff excepted.

F. H. COLLEY, for plaintiff in error.

W. M. & M. P. REESE, for defendant.

BLECKLEY, Judge.

1. The judge below granted a new trial because the verdict was unsupported, on a material point, by the evidence. As we ruled during the last term, in the case of Sewell vs. Holland, 54 Georgia Reports, 611, only a very palpable abuse of discretion will be met, in this court, by a judgment of reversal, where the new trial ordered is put upon this ground, and is the first new trial granted in the case. A first verdict which is not satisfactory to the judge who presided at the trial is, presumptively, wrong; and it must be right to a very high degree of certainty for us to restore it after it has been set aside by him. We have no purpose to nullify the law which clothes him with the power to grant new trials for mistakes or misapprehensions of the jury. Since the abolishment of our ancient and excellent system of appeals to a special jury, this power of the circuit judge has acquired increased importance. If it has been borne down hitherto, it ought to be upheld now in its full force and vigor. If the jury and the judge cannot harmonize on the first trial, there ought, as a general rule, to be a second, if the judge is so much dissatisfied as to order it. He must not abuse his discretion, but let him exercise it freely and fearlessly. It is to that end that the law entrusts him with it: See Brown vs. Oattis, 55 Georgia Reports, 416.

2. We think there was ample reason for granting a new trial in the present case. The defendant's cropper and not the defendant, was the party answerable to the plaintiff: 49 Georgia Reports, 580.

Judgment affirmed.

Dunn vs. The State of Georgia.

LINDSAY Dunn, plaintiff in error, vs. THE STATE OF GEOR

GIA, defendant in error. 1. The identity of the defendant and the intent with which he makes the as

sault, when charged with an assault with intent to rape, are questions for the jury, and no complaint being made of any error in the charge of the court, or in the admission or rejection of evidence, and a new trial having

been refused by the presiding judge, this court will not interfere. 2. Newly discovered evidence which ought not to have changed the verdict

if in at the trial, and which might have been procured with diligence, and which counsel do not swear that they did not know at the trial, will not authorize a court to set aside a verdict and grant a new trial.

Criminal law. Rape. New trial. Before Judge UNDERWOOD. Floyd Superior Court. July Term, 1875.

Reported in the opinion.

WRIGHT & FEATHERSTON; FORSYTH & REESE, by R. T. Fouche, for plaintiff in error.

C. F. CLEMENTS, solicitor general, for the state.

JACKSON, Judge.

The defendant was convicted of the offense charged, and moved for a new trial on the ground that the verdict was against the law and the evidence, and not sufficient to produce that certainty of mind necessary for legal conviction of crime, and on the further ground of newly discovered testimony. The court overruled the motion, and error is assigned here on these grounds, which alone are insisted upon.

1. A school-girl on the road home from school was rudely assailed by a young man whom she never saw. He seized her arms and tried to force her into the woods. She screamed repeatedly, and after some five or ten minutes he let her go, about the time that a Mrs. King, who seems to have lived in the neighborhood, could have reached the place, according to the girl's evidence. On her arrival at home she told her mother in great excitement, and on his return, her father also. She could not identify the man, but others show that the defendant must have been the person, from circumstances related

Dunn vs. The State of Georgia.

by them which point clearly to him. The questions of his identity, and of the intent of this rude assault upon this school-girl, are questions for the jury. They were satisfied ; the court below who tried the case was satisfied; and there being enough evidence to sustain the finding of the jury, and the act of the court in sustaining that finding, we will not, as we have often ruled, interfere in the case on this ground of the motion.

2. The other is very weak. The counsel do not swear that they did not know of the existence of the newly discovered evidence at the trial. It is doubtful (nay, it is almost certain that it would not do so,) that it would alter the verdict. One witness swears to some slight difference between the girl's evidence on the committing trial and the jury trial, and that he had not informed defendant of it. Another, that there was no appearance of a scuffle on the road ; another, that the girl's mother was off at her honse, a half mile from her home when the difficulty occurred, while at the trial she swore her daughter told her the circumstance shortly after she got home. The whole of it might have been obtained with diligence, and if obtained would have been of little value. We cannot interfere to grant a new trial on such a ground so supported. Perhaps it would have been better not to have inflicted so severe a sentence, when possibly the young man intended only persuasion, and in taking hold of the young lady, intended only gently to lay hold of her—“molliter manus imponere.Yet a female on the high way, particularly a school-girl in her teens, should be as safe on that highway of the state as by the fireside of her father; and should be assured of safety in the fact that the law, an invisible but all jealous and watchful guardian, ever walked on that highway by her side, and with power equal to the arm of her father at her home, would shield her from danger, or vindicate her when wronged. Robed in virgin purity, her person is sacred in the eyes of this jealous guardian ; let the rude hand of no stranger touch it, either to ravish or to seduce.

Judgment affirmed.

Young vs. The State of Georgia.

SQUIRE YOUNG, plaintiff in error, vs. THE STATE OF GEOR

GIA, defendant in error.

1. The identity of the perpetrator of the offense is for the jury, and the evi

dence in this case was sufficient. 2. Evidence known to the prisoner at his trial is not newly discovered,

though not known to his counsel until afterwards. 3. Newly discovered evidence, even if not strictly cumulative, may be of no

higher value than cumulative evidence; since producing a first witness to a new fact may be equal, simply, to producing a second witness to an old

fact of the like character. 4. Newly discovered evidence is not favored as a ground for new trial.

Greatly increased caution is needed now, since promiscuous affidavits are known to be less trustworthy than formerly. Courts are not obliged to grant a new trial for newly discovered evidence unless they are reaso

asonably convinced that on another trial there would probably be a different verdict. As a means of promoting such conviction in the judicial mind, it would be an advantageous practice to let it appear in the record not only who the new witness is, but where he resides, what is his character, and who are some of his associates or acquaintances. Affidavits to his character and credibility would be profitable.

Criminal law. New trial. Newly discovered evidence. Before Judge HOPKINS. Fulton Superior Court. October Term, 1875.

Reported in the opinion.

WRIGHT & HILL, for plaintiff in error.

John T. GLENN, solicitor general, for the state.

BLECKLEY, Juilge.

1. This case turned on the identification of the prisoner as the person who stole and rode off the horse. The evidence shows that he was recognized with tolerable certainty by three witnesses. One of them saw him catch the animal, tie, mount, and ride off. Another saw him upon the roadside with the animal hitched near him. Another, seeing him run through the woods on foot, pursued and caught him. This was in the neighborhood of where the person riding, whoever

Young vs. The State of Georgia. he

was, had been seen by two other witnesses to dismount from the horse and escape into the woods to avoid capture. The jury believed that the prisoner's identity was sufficiently established to warrant them in finding him guilty, and we cannot say that they were mistaken. Even with the newly discovered evidence we cannot say that they ought, or that they probably would, find differently on another trial.

2. A part of the evidence called newly discovered is not 80;

the prisoner knew of it, and should have informed his counsel. We observe from the record that, though a colored person, and but fifteen years old, he had been to school and could write his name. He had intelligence enough to be chargeable with legal diligence in preparing for his defense.

3. The only evidence in the showing for a new trial which we can recognize as newly discovered, is that set out in the affidavit of Harrison Davis, which is simply a repetition of what was sworn to on the trial by one of the prisoner's witnesses, applied to another time and place, namely, that the prisoner was not the rider of the animal, and that the rider had a moustache. The witness examined testified to such a rider being seen on the animal in Davis street, and the new witness describes the same rider as passing the rolling mill. The only difference in the two statements is, that the former witness says nothing of side whiskers, and represents the man as old; whereas, the latter witness omits any reference to age, and mentions side whiskers as well as moustache. It may be that this new evidence is not strictly cumulative. The fact of the same rider passing the rolling mill on the horse is not the same as the fact of his passing through Davis street, and yet the whole value of both facts depends on one and the same thing, to-wit: the supposed identification of the rider as some person other than the prisoner. It is difficult to see how identifying him thus at two places by one witness at each, is any better than identifying him at one place by the same two wit

In the present case there is no reason to suppose that the prisoner had the horse at all, unless he had it from the time the larceny was committed until the horse was abandoned

nesses.

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