Edge v. The State

Supreme Court of Georgia1946-01-15No. No. 15334

200 Ga. 257

Summary · law.co

Holding. The court affirmed the judgment, holding that the extraordinary motion for new trial was properly overruled because the newly discovered evidence was merely cumulative of alibi evidence presented at trial, and the defendant failed to demonstrate that the evidence itself was newly discovered or that he exercised ordinary diligence in attempting to locate these witnesses before trial.

Edge sought an extraordinary motion for new trial on multiple grounds, including that the underlying statute was unconstitutional and that newly discovered evidence supported an alibi defense. The newly discovered evidence consisted of affidavits from witnesses who claimed to have seen Edge in Brunswick, Georgia near the time the crime was committed in Toombs County. At trial, Edge had already presented alibi witnesses, including his landlady and other Brunswick residents, who testified they saw him at work and at his boarding-house on the date in question.

The court rejected all grounds of the motion. Regarding the constitutional challenge, the court found it too vague and improperly raised in an extraordinary motion. On the newly discovered evidence claim, the court determined that because similar alibi testimony had already been presented at trial, the new affidavits were merely cumulative. The court further reasoned that if Edge was genuinely in Brunswick at the time of the crime, he would necessarily have known about these witnesses and could have located them through ordinary diligence at trial. The defendant's affidavit claiming he did not know of the evidence until shortly before filing the motion was deemed insufficient, containing only conclusory assertions without adequate factual support.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether newly discovered alibi evidence that is cumulative of trial testimony warrants an extraordinary new trial motion
Whether a defendant who presented alibi witnesses at trial can later claim due diligence when additional similar witnesses emerge
Whether a constitutional challenge raised through an extraordinary motion must be sufficiently specific

Procedural posture

Edge appealed the trial court's overruling of an extraordinary motion for new trial following his criminal conviction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wyatt, Justice.

The plaintiff in error excepts to the overruling of his extraordinary motion for new trial, which, with the exception of the fourth and fifth grounds, complains of alleged errors committed on the trial of the case and excepted to in a previous motion for new trial disposed of by this court in Edge v. State, 199 Ga. 431 (34 S. E. 2d, 498). The fourth ground of the extraordinary motion is as follows: “Because the law under which he is charged is unconstitutional and void on its face. It takes away his liberty without due process and he is deprived of his constitutional rights.” The fifth ground is based on newly discovered evidence. Affidavits supporting the fifth ground were to the effect that the affiants knew the defendant, and on June 9 and 10, 1944, saw him in Brunswick, Georgia, at a boarding-house and at Ms place of work, and of their own knowledge know that he was at a boarding-house in Brunswick, Georgia, near the time of the crime, which was committed in Toombs County on the night of June 9, 1944. There was an accompanying affidavit as to the. character and credibility of the witnesses. The defendant and his attorney deposed that they did not know of this evidence until a short time before the filing of the extraordinary motion, and could not have known of such evidence by the exercise of ordinary diligence. The record shows that on the trial of the ease a number of witnesses were offered by the defendant to prove the defense of alibi, and these witnesses testified to the effect that they lived in Brunswick, Georgia, were acquainted with the defendant, and on June 9, 1944, saw him working and at his boarding-house in Brunswick, Georgia. One of these witnesses was his landlady. Held:

No. 15334.

January 15, 1946.

1. All grounds of the extraordinary motion, except the fourth and fifth, have been adjudicated and cannot now he raised in an extraordinary motion for new trial. King v. State, 174 Ga. 432 (2) (163 S. E. 168).

2. The fourth ground of the motion is too vague and indefinite to raise any question for decision (Williams v. State, 187 Ga. 415, 1 S. E. 2d, 27), and is raised too late in an extraordinary motion for new trial. Boyers v. State, 198 Ga. 838, 842 (33 S. E. 2d, 251).

3. “Newly discovered evidence which is merely cumulative of that of the existence of which the party making a motion for a new trial knew when the case was tried, and which he apparently, by the exercise of ordinary diligence, might have procured but did not introduce, is not cause for a new trial even in an ordinary motion therefor, and certainly can afford no ground upon which to base an extraordinary motion.” Jinks v. State, 117 Ga. 714 (44 S. E. 814). “To render alleged newly discovered evidence available as cause for a new trial, it should appear that the evidence itself is newly discovered, not merely that certain named witnesses by whom the facts can be proved were unknown until after the trial.” Burgess v. State, 93 Ga. 304 (20 S. E. 331). “Beginning with Roberts v. State, 3 Ga. 310, it has been repeatedly held by this court that newly discovered evidence which is merely cumulative, that is, tending to establish a fact in relation to which there was evidence upon the trial, is not good cause for a new trial.” Jinks v. State, supra.

4. The alleged newly discovered evidence in this case, being simply cumulative and of the same character as that offered upon the trial on the question of alibi, affords no ground for a new trial. Moreover, from the very nature of the alleged newly discovered evidence, which relates to the defense of alibi, the defendant, if he was in Brunswick at the time of the crime, must have kno>vn of the existence of such evidence, and by the exercise of ordinary diligence could have produced it at the trial. Coggeshall v. Park, 162 Ga. 78 (132 S. E. 632). The affidavit of the defendant and his counsel as to due diligence is a mere opinion, without sufficient facts being shown by which the court could judge whether they had used due diligence. Redding v. State, 183 Ga. 704 (189 S. E. 514), and cit. The court did not err in overruling the extraordinary motion for new trial.

Judgment affirmed.

All the Justices concur.

William B. Kent, for plaintiff in error.

Eugene Cook, Attorney-General, W. H. Lanier, Solicitor-General, C. M. Dobbs, Assistant Attorney-General, and Bubye G. Jackson, contra.