Opinion
13975.
JANUARY 13, 1942. REHEARING DENIED FEBRUARY 13, 1942.
Murder. Before Judge Paul S. Etheridge. Fulton superior court. September 19, 1941.
Paul W. Hughes and Alton T. Milam, for plaintiff in error.
Ellis G. Arnall, attorney-general, John A. Boykin, solicitor-general, Quincy O. Arnold, Durwood T. Pye, E. J. Clower and C. E. Gregory, assistant attorneys-general, contra.
1. After the accused has been convicted of the crime of which he was charged, and has made a motion for a new trial, and the judgment denying it has been affirmed by this court, when an extraordinary motion for a new trial is made, based on the ground of newly discovered evidence, it should be made to appear that such evidence is so material that it would probably produce a different result on another trial. Young v. State, 56 Ga. 403 (4); Rogers v. State, 129 Ga. 589 ( 59 S.E. 288); Brown v. State, 141 Ga. 783 ( 82 S.E. 238).
2. Such an extraordinary motion is addressed to the sound discretion of the trial judge, and a refusal to sustain it will not be reversed unless such discretion is abused. Brown v. State, supra.
3. A consideration of the evidence produced on the trial is necessary to determine whether the alleged newly discovered evidence would be likely to produce a different result; and since the present record does not contain a brief of such evidence, it can not be said that the judge abused his discretion in refusing to sustain the motion.
Judgment affirmed. All the Justices concur.