Coalley v. State
Coalley v. State
Opinion of the Court
The appellant was convicted of aggravated assault. He appeals the denial of his motion for new trial, in which he alleged, among other things, the existence of newly discovered evidence which would have produced a different verdict had it been available at trial.
The evidence shows that the appellant and an acquaintance named Gerald Cross entered into an altercation at the Oasis Club one evening in Mt. Airy. The dispute ended, at least temporarily, when Cross hit the appellant over the head with a billy club. The appellant’s wife helped him into their car, and they left.
A few minutes later a car rode by, and someone inside it fired a shotgun blast at Cross. The victim was standing next to Cross and was hit in the leg. He testified that he saw the appellant fire the shot. The appellant testified that he remembered nothing that happened that evening after he was hit over the head.
The newly discovered evidence consists of the statements of two eyewitnesses who contend that they saw the shooting and that, although the appellant was in the car, another person fired the shot. Both these witnesses were listed on the indictment, and it appears from the transcript that at least one of them was issued a subpoena by the state; however, the subpoena was never served because the witness could not be located. Held:
1. "The rules relating to the grant of a new trial based on newly discovered evidence are: (1) that the evidence has come to the knowledge of the moving party since the trial; (2) that it was not owing to the want of due diligence that the moving party did not acquire it sooner; (3) that it was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. [Cits.]” Walters v. State,
For the above reasons, we hold that the trial court did not err in denying the motion for new trial on the ground of newly discovered evidence.
2. The evidence amply supported the verdict.
3. The appellant’s remaining arguments are merely restatements of his remaining enumerations of error and áre not supported by any citation of authority. We have nevertheless reviewed each of them and have determined each to be without merit.
Judgment affirmed.
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