Graham v. State
Graham v. State
Opinion of the Court
1. “Where, from the affidavits submitted in connection with a motion for a now trial, based on newly discovered evidence, it appears that the testimony relates to material facts which, upon another investigation, would likely produce a different result, and could not by the exercise of ordinary diligence, have been obtained at the trial, a now trial should be granted. This is true even though it be impeaching in its character, if it tends to establish a new and independent fact indicating the defendant’s innocence.” Saylors v. State, 9 Ga. App. 227 (70 S. E. 975); Harper v. State, 50 Ga. App. 298 (177 S. E. 886); and see Fellows v. State, 114 Ga. 233 (39 S. E. 885). In the instant case, there was no counter-showing made to the ground of the motion for a new trial, based on newly discovered evidence; and it appears from the affidavits in support of this ground that there was no want of diligence in discovering' the new evidence, as the affiant furnishing the new evidence was not a resident of the county of the alleged crime, was only a dinner guest in the home next door to the scene of the alleged crime, and no one was aware, until after the trial, that he had the defendant under his observation during the time in which the alleged crime was supposed to have been committed; and while the newly discovered evidence is contradictory of the evidence offered by the witnesses for the State and is necessarily impeaching of those witnesses, it is not purely so; and while such evidence is corroborative of the defendant’s statement and cumulative of that statement, it is not cumulative oj any evidence adduced upon the trial, but is evidence of a fact which, if submitted to the jury and believed bjr them, would produce a verdict of acquittal, in that the affiant swears that the defendant was under his observation during the entire time that the alleged assault was committed, if the State’s witnesses as to the sequence of the events are to be believed, that the defendant did not enter the prosecutrix’ house, that the prosecutrix was not with the defendant during that time, and that the father of the prosecutrix came out of the house and struck the defendant without apparent provocation, and if true, the defendant could not have assaulted the prosecutrix at all, with or without intent to rape. We think, therefore, there was a manifest abuse of the court’s: discretion in refusing the defendant a new trial under the circumstances of this case and the uncontroverted facts contained in the affidavits in support of the ground of the motion for a now trial, based upon newly discovered evidence.
2. Since the same question is Iikcfy to recur upon the new trial, we will say here that the trial court did not err in admitting in evidence the tcstimon3r of the prosecutrix that on a prior occasion this same defendant had offered her “five dollars to go down the alley with him.” Since the case involves a sexual offense or crime, the evidence here comes within the exception to the rule that evidence of other crimes is inadmissible. Dorsey v. State, 204 Ga. 345, 349 (49 S. E. 2d, 886) ; McMichen v. State, 62 Ga. App. 50, 51 (7 S. E. 2d, 749); Allen v. State, 201 Ga. 391, 395 (40 S. E. 2d, 144), and for the latest expression of the Supreme Court on the subject of evidence of other crimes, see Bacon v. State, 209 Ga. 261 (71 S. E. 2d, 615).
The defendant, Lamar Graham, was indicted and convicted on March 19, 1952, of having committed the offense of assault with intent to rape on a female child under the age of fourteen years, on January 26, 1952. His motion for a new trial, based on the usual general grounds and three special grounds, was denied and he excepted.
The entire evidence bearing upon the defendant’s commission of the alleged offense comes from Helen, the child alleged to have been assaulted, who was .eight years of age at the time of the trial, her sister, June, aged ten, and the father of the children. It appeared from the testimony of the children that on the night of the alleged offense the defendant came to their home at a time when their parents were not present and after the children had retired for bed. Helen and her sister were in a bedroom of the home in which there was no light burning. June was in the bed and Helen was sitting on the, bed. The defendant came into the room and endeavored to get Helen to go with him to another room in the house. She refused. He took her by the arm and “drug” her out to-the backdoor steps and from there- led her out behind an outdoor toilet where he offered her “a dollar and a dime to spend the night with him.” She refused, saying that her mother had instructed her to stay in bed. The defendant then told her that if she told anyone what had transpired between them he would kill her. At that time they saw the lights of an approaching automobile and departed from behind the outdoor toilet; the defendant went around one side of the toilet and she around the other. As she came around from behind the toilet her father and the defendant were engaged in a fight.
3. As to the competency of the eight-year old prosecutrix as a witness, see Russell v. State, 83 Ga. App. 841 (65 S. E. 2d, 264); Long v. State, 84 Ga. App. 638 (6) (66 S. E. 2d, 837).
Judgment reversed.
The defendant in his statement to the jury maintained that on the night of the alleged offense, he had been visiting his aunt in the Powell house which is on the opposite end of the row of houses from his own, that he went home by the back way, and that when he “got just passed” the backdoor of the child’s house and was leaning over the water spigot, the father came up and without a word struck him over the head and he knew nothing more until he found himself in jail; and that he had had nothing to do with the child.
In special ground 1 the defendant contends that he is entitled to a new trial on the basis of the newly discovered evidence contained in the affidavit of Roy Graves. The affidavit is attached to this ground of the motion and is duly accompanied by affidavits of the movant and his counsel as to their diligence,
Special ground 2 is based upon the alleged incompetency of the prosecutrix.
Special ground 3 is based upon the court’s alleged error in admitting in evidence the prosecutrix’s testimony that on another occasion prior to the time of the present alleged offense, the defendant had offered her $6 to go down the alley with him.
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