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ZACHERY v. THE STATE.
53586.
Simple battery. Fulton Criminal Court. Before Judge Alexander.
DEEN, Presiding Judge.
The appellant was tried without a jury for simple battery. The victim testified that he was struck in the face by the appellant in an altercation over a baseball game. The appellant did not deny striking the blow but offered the testimony of two eyewitnesses to the effect that the victim had made threatening statements and gestures toward the appellant prior to the blow being struck. The judge found the appellant guilty and suspended the fine and sentence.
The appellant made a motion for new trial on the ground of newly-discovered evidence -- an eyewitness who would testify that the victim was carrying a baseball bat at the time he struck. The judge denied the motion for new trial and from this denial the appellant appeals.
The grant of a motion for new trial for the discovery of new evidence must be predicated upon the satisfactory demonstration of the six criteria found in Long v. State, 237 Ga. 110, 111 (227 SE2d 22).
Mere statements in the motion that the movant did not know of the evidence before trial are insufficient. Moss v. State, 44 Ga. App. 244 (161 SE 293). The "new" witness was an eyewitness to the events and there was no explanation why his name and testimony could not have been discovered prior to trial. Johnson v. State, 196 Ga. 806 (3a), 807 (27 SE2d 749). Post mortem zeal and earnestness is not a substitute for ante mortem diligence. Bass v. African Methodist Episcopal Church, 155 Ga. 57 (10) (116 SE 816).
The evidence must be such that it would probably produce a different result on another trial. Pace v. State, 121 Ga. App. 251 (173 SE2d 464). The "new" witness testified that the victim was holding a baseball bat when he was struck by the appellant. The witness was then questioned: "From where you were standing did it look like Andre was gonna use this baseball bat on Terry?" The witness responded: "You know, I don't really know because he prob -- to me, he probably would because he was crying, see." This evidence was at most cumulative of the appellant's theory of self-defense and would have the anomalous effect of impeaching the other defense witnesses who testified that the victim menaced the appellant with his fists. The trial judge did not abuse his discretion in denying the appellant's motion for a new trial based upon this "newly discovered evidence." Montgomery v. State, 140 Ga. App. 286 (231 SE2d 108).
Judgment affirmed. Webb and Marshall, JJ., concur.
Hinson McAuliffe, Solicitor, Frank A. Bowers, Assistant Solicitor, for appellee.
Gary E. Jackson, for appellant.
SUBMITTED MARCH 2, 1977 -- DECIDED MARCH 11, 1977.
Friday May 22 07:08 EDT


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