JENKINS, Presiding Justice.
1. "A new trial may be granted in all cases where any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him." Code, § 70-204. Under these provisions, newly discovered evidence that is merely impeaching in nature will not authorize a new trial, even though such evidence may relate to the only testimony on some vital point. Arwood v. State, 59 Ga. 391; Levining v. State, 13 Ga. 513; Moreland v. State, 134 Ga. 268 (2) ( 67 S.E. 804); Wright v. State, 34 Ga. 110 (2); Jackson v. State, 93 Ga. 190 ( 18 S.E. 401); Key v. State, 21 Ga. App. 795 ( 95 S.E. 269).
2. "Cumulative evidence" is loosely defined by the Code, § 38-102, as "that which is additional to other already obtained." But the true test as to whether evidence is cumulative depends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different grade. It is only when newly discovered evidence either relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence, and afford basis for a new trial. Brinson v. Faircloth, 82 Ga. 185, 187 ( 7 S.E. 923); Moore v. Ulm, 34 Ga. 565, 571; McKinnon v. Henderson, 145 Ga. 373 (3), 374 ( 89 S.E. 415); Malone v. State, 49 Ga. 210 (15), 220; Georgia Southern Fla. Ry. Co. v. Zarks, 108 Ga. 800 (2) ( 34 S.E. 127); Fellows v. State, 114 Ga. 233, 237 ( 39 S.E. 885); Thomas v. State, 52 Ga. 509, 514; Dale v. State, 88 Ga. 552, 561 ( 15 S.E. 287); Blount v. King, 51 Ga. App. 4 (2) ( 179 S.E. 198); 39 Am. Jur. 178, 179 (§§ 173, 174), and cit.; 46 C. J. 271-273 (§§ 239-241). But, as an exception to this rule, it is recognized that where the new evidence, though it be of the same or even inferior grade, tends not merely to strengthen the correctness of the contention on the particular material issue previously sought to be established, but such new proved fact or circumstance, if believed, would in and of itself establish or disprove the controlling point in controversy, or would establish or disprove it by supplying a link or gap missing in the previous testimony, it will afford basis for a new trial. Cooper v. State, 91 Ga. 362 (2), 366 ( 18 S.E. 303); Sayles v. State, 9 Ga. App. 227 (2), 229 ( 70 S.E. 975); Hines v. Com., 136 Va. 728 ( 117 S.E. 843, 35 A.L.R. 431); Myers v. Brownell, 2 Aik. (Vt.) 407 (16 Am. D. 729).
3. All of the alleged newly discovered evidence was plainly either cumulative of the defendant's previous testimony or impeaching of the State's testimony, except new evidence by one affiant that, just before this defendant shot, the deceased "ran his hand in his pocket." This related to a fact as to which no witness testified at the trial, and the defendant in his statement to the jury said, "he started out with the pistol and I shot him," and "I shot him to keep him from killing me."
( a) However, even though it be assumed that such newly discovered evidence related to a material fact and was not merely cumulative or impeaching in character, the defendant in his motion for new trial must show not merely that neither he nor his attorney knew of such evidence at the time of the trial, but must also show by facts the exercise of due diligence on the part of both himself and his attorney, under which the new evidence was not and could not have been discovered. A recital, as in this case, that the new evidence was unknown to the defendant or his counsel before and at the time of the trial, and "could not have been discovered by the exercise of ordinary diligence," is a "mere opinion on their part, and [gives] no facts by which the court could judge of whether they had used due diligence or not, and whether the evidence could have been discovered before by such use." Taylor v. State, 132 Ga. 235 (3), 237 ( 63 S.E. 1116); Patterson v. Collier, 77 Ga. 292 (3), 296 ( 3 S.E. 119); Wheeler v. Salinger, 33 Ga. App. 300 (9) ( 125 S.E. 888), and cit.; Tyre v. State, 35 Ga. App. 579 ( 134 S.E. 178); Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (6) ( 118 S.E. 467); Schaefer v. Schaefer, 46 Ga. App. 789, 790 ( 169 S.E. 256); Trammell v. Shirley, 38 Ga. App. 710, 727 ( 145 S.E. 486); Baggett v. State, 42 Ga. App. 389, 390 ( 156 S.E. 276); Allison v. Garber, 50 Ga. App. 333, 336 ( 178 S.E. 158). Especially is there no abuse of discretion, where, as in the instant case, the homicide occurred in the presence of a crowd, and several months elapsed before the trial, during which the defendant was at liberty under bond, and where there was no explanation or showing why the names and testimony of the new witnesses could not have been ascertained through other bystanders who testified at the trial. See Roach v. State, 63 Ga. 362, 365; Hutchins v. State, 70 Ga. 724 (2). From the foregoing rulings, the court did not err in refusing a new trial on the ground of newly discovered evidence.
( b) Moreover, in addition to the preceding requirements, newly discovered evidence must be such as would probably cause a different verdict to be returned, if introduced at another trial. Mallory v. State, 56 Ga. 545 (2); Cooper v. State, 91 Ga. 362 (2), 366 ( 18 S.E. 303); Burge v. State, 133 Ga. 431 (2) ( 66 S.E. 243). It cannot be said that the only new testimony not of merely cumulative or impeaching character, by one witness that the deceased merely "ran his hand in his pocket" before he was shot, would probably cause a verdict of acquittal, in view of the dying declaration of the deceased and all the other testimony at the trial, not only that he was unarmed, but that he had not made any menacing gesture before the fatal shot. For that additional reason, the court did not abuse his discretion in refusing a new trial on this ground.
5. On the only remaining grounds, which are merely general, the evidence amply authorized the verdict.
Judgment affirmed. All the Justices concur.
No. 14673. NOVEMBER 9, 1943.JENKINS, Presiding Justice.
On March 22, 1943, H. T. Johnson and his brother, Asa Johnson, were jointly indicated for the murder of Grady Solomon with a pistol, on May 22, 1942. On March 24, 1943, the defendants were tried jointly. H. T. Johnson was found guilty, without a recommendation to mercy. Asa Johnson was found guilty, with a recommendation, and was sentenced to life imprisonment.
The defendants filed separate but similar motions for new trial, on the general grounds, and on the ground of newly discovered evidence. They brought to this court separate writs of error from the refusal of a new trial. Although the general grounds are not abandoned, they urge especially the ground of newly discovered evidence, based upon affidavits filed under the statute, some of which were resisted with a counter-showing by the State.
Under the undisputed testimony, on the night of May 22, 1942, the defendant, H. T. Johnson, shot Grady Solomon in the abdomen with a pistol, from which death ensued a few days later. The shooting occurred near a schoolhouse at McDonough, where a crowd had gathered for commencement exercises. Solomon was in the crowd with a girl, Willie Ruth Ragland, when H. T. Johnson appeared, and asked the girl to come over where he was, but she would not go. Words passed between this defendant and the deceased. The defendant threatened to slap the deceased, who told the defendant that he was not afraid of him. The deceased left the place for a few minutes, and went to his automobile. According to one witness for the defendant, the deceased said just before he left that "he was going to get a gun;" but according to the other witnesses he did not make such a statement. According to all of the witnesses, when the deceased returned, he had no pistol, knife, or other weapon, and none was found after the shooting; and he only said to the defendant, H. T. Johnson, "Well, I am back now," without any menacing gesture, before this defendant fired.
Henry Lowe, a witness for the State, testified that he did not know what the trouble was about, but he was standing with the crowd close to those concerned, and saw the defendant Asa Johnson, and another young colored man, Theotis Walker, grab Solomon, the deceased, just before "this other Johnson boy . . walked up and shot him;" that when the deceased was shot "he was trying to get loose," and had no weapon; and that H. T. Johnson "was almost close enough to put the pistol on him." This witness had not testified at the commitment trial or before the grand jury.
Preston Jackson testified for the State, that he saw the deceased just before the homicide, and, as he was leaving, "heard a boy say, `All right, let's get him,'" but didn't know who said it, and that then Asa Johnson and Theotis Walker grabbed the deceased, "and H. T. shot him;" that when they grabbed him "H. T. was right up on him when he shot him with the pistol," and the deceased was "just trying to get away;" and the witness did not see any knife, pistol, or other weapon of the deceased. This witness had not testified at the commitment trial.
Willie Ruth Ragland, the girl who was with the deceased, testified as to what H. T. Johnson had told her and the deceased; that the deceased had not said anything to that defendant; that when the deceased left and came back, she "saw all three of them [the two defendants and Walker] on [the deceased], and that is when I heard the shot;" that "no one was helping" the deceased, "all three were against" him; but that she did not know who fired the shot.
Lacy Thomas testified for the State, as to an argument between the defendant H. T. Johnson, and the deceased, before the homicide; that the defendant left the place, and when he returned there was "some argument; and that is when I saw H. T. have his gun on [the deceased] and shoot;" that the witness "did not see Asa Johnson and Theotis Walker at that time;" that the witness was fifteen or twenty feet away, but it was in the light; that when he "looked around, H. T. had the gun and brought it up and fired it; when H. T. brought up the gun, [the deceased] reached for the gun that H. T. had; I did not see [the deceased] with anything in the world;" that "when this pistol fired, just H. T. and [the deceased] were together, . . there wasn't anybody down on top of each other when it happened, if they had been I could have seen them; I did not see Asa Johnson and I did not see Theotis Walker hold of anybody at that time; that is all I seen at the time I saw them when the pistol fired . . when I looked around, nobody was holding anybody."
Zelma Calhoun, sister of the deceased, testified, that she was a practical nurse at a hospital, and was there with the deceased just before his death; that he knew he was dying, and on the day of his death told her that "he was going to die," and asked, "Has he got those boys locked up?" "I said, `They have H. T. locked up,' and he said, `They didn't give me a chance. Asa held me and this other boy took the pistol and shot me.'"
Thomas Solomon, father of the deceased, testified that he heard the shooting, but did not know his son had been shot; and while he testified that he saw H. T. Johnson with a pistol in his hand, and that he "saw Asa Johnson, his brother at that time," he also said that he "did not see anybody but those two," one who "was standing upright when he was shot, and H. T. was standing upright from what I could see;" but that "there was plenty of other people there."
H. M. Amis testified as to a declaration by the deceased, after being shot and being told by the doctor that "everybody who had been brought in with that type of wound had died," in which the deceased said that H. T. Johnson "and his brother had killed him, and that he shot him without any cause;" and that "H. T. was the one who shot him, and that his brother was with him."
For the defendant, Sammie J. Price testified, that when the deceased "went towards his car . . he said he was going to get a gun;" that when the deceased came back in five or ten minutes, or not that long, all he said was, "Well, I am back now;" that the witness saw no weapon on the deceased, and did not hear him mention having one; and that when the deceased "got shot, he was not doing anything. . . I didn't see him do nothing." This witness did not see the defendant, Asa Johnson, "about this time anywhere around there. . . I did not see him that night."
The statement at the trial, by the defendant H. T. Johnson, was as follows: "We got started to the church, and this girl was standing out there, and this boy and me, and this there boy walked up there, and I said, `Come here,' and he said, `You want me to come?' and I told him, `No, you ain't no girl,' and he said, `I'll come anyhow,' and he caught this girl, and we argued at one another, and I told him I would slap the p — out of him when he told me he would do something to me, and he said, `Wait, and I will get a gun and come back,' and he went out to his car and went around the schoolhouse, and we was out there to ourselves then, me and them girls, and he comes right back to me and says, `Well, I am back,' and he started out with the pistol, and I shot him. I didn't shoot to kill him; I shot him to keep him from killing me."
The statement by the defendant Asa Johnson was: "Well, my business up there was going to class, trying to help Mr. Mack with the class, and he was bringing the boys from Locust Grove over there. I did not know the row was started. I was on the outside trying to see about some gas, as I had run out of gas, and I had seen him about some gas, and he told me `No,' and I went out to see how much was in my automobile, and I was back around next to the car, and I heard the shot made, and I went out there where the car was, and some one said it was my brother, and I didn't know whether it was him that done the shooting, and I went hunting him, and they said he was the one who done the shooting."
A summary of essential statements in the affidavits of alleged newly discovered evidence, which were supported by other affidavits as to associates and good character of the witnesses, is as follows: Arvin Pullen swore that he was in front of the McDonough colored schoolhouse at the time of the homicide, and "saw fire from the pistol, but did not see the shooting;" and that Henry Lowe, a witness who testified for the State at the trial, "was not up at the schoolhouse when the shooting took place," but when the witness passed Lowe's house down the road, Lowe "came out to the road from his back yard, and asked what had happened up there, deponent said, `They tell me that the Solomon boy got shot,' and Henry Lowe said, `Oh, that's mighty bad, I sure do hate that,'" and "then went on up toward the schoolhouse." Ross Thompson and Oscar Wynn made similar affidavits.
Ezra N. Downer, boy scout field executive for colored youth, stationed at Griffin, made affidavit that he saw the shooting while he sat in an automobile, and saw H. T. Johnson fire a pistol, "but no one was holding [the deceased] at all when he was shot;" and that testimony given at the trial as to two persons holding the deceased was untrue.
The affidavit of Clarence Davis also stated that at the time of the shot Asa Johnson was not holding the deceased or "doing anything" to him; although this witness said that, shortly before the shot, "Theotis Walker came up and caught hold of [the deceased] and wanted to know what he was fussing about, but Walker had already turned [the deceased] aloose when H. T. Johnson came back, and did not have hold of him at all, and nobody had hold of [him] when [H. T.] fired the pistol."
In an affidavit by John Brantley, he stated that "nobody was holding [the deceased] when H. T. shot him," and that although "Asa Johnson was there . . he did not have hold of [the deceased] at all." He made this further statement; "Theotis Walker walked up and asked `What was [the deceased] talking or mouthing about?' and asked `What was the matter with him?' and then H. T. come up where [the deceased] was, and while he was talking [the deceased] run his hand in his pocket, and H. T. shot him. . . [He] ran his hand in his pocket, and when he did H. T. shot him."
In a counter-showing by the State, Henry Lowe made an affidavit in explanation of statements in the preceding affidavits, attempting to impeach his testimony at the trial; and stated as to why he was at his home when affiants passed there after the shooting. He swore that when the shooting occurred he was standing by an automobile with his sister and his brother-in-law; that she became excited, and they drove away with him; and that the reason he had asked other affiants as to who was shot was that he "was not positive who it was that had got shot," although "he had seen and heard the trouble." He again swore to the statements he had made at the trial.
Ruby Dabney and John Dabney, Lowe's sister and brother-in-law, made affidavits corroborating him as to his presence at the shooting, and as to why he had left and was seen at his home.
The defendants, and their attorneys who represented them in their motion for new trial and before this court, make one affidavit, each making oath that "he did not know of the evidence . . as set out in the amended motion for new trial, before and prior to the trial of said case, . . and that such evidence could not have been discovered by the exercise of ordinary diligence." No facts relating to such diligence were stated. One of the two counsel also made oath, and it was so stipulated, that he was not employed and did not participate in the case until after the trial and the filing of the original motion for new trial by the attorney who alone represented the defendants at the trial.
The record shows that the defendants were indicted on March 22, 1943, and tried on March 24; that the homicide occurred on May 22, 1942, and a commitment trial was had in June, 1942, following which Asa Johnson was released, and H. T. Johnson was released under bond.
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