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ROSS v. THE STATE.
49191.
DEEN, Judge.
Aggravated assault. Bibb Superior Court. Before Judge Bell.
1. An assault is aggravated when made with a deadly weapon, regardless of intent. Harper v. State, 127 Ga. App. 359 (3) (193 SE2d 259); Code Ann. 26-1302. Under conflicting evidence the jury was authorized to find that the defendant came to the home of his estranged wife, shoved his way through the back door, and shot her as she attempted to leave by the front door.
2. A ground of the motion for new trial based on newly discovered evidence contends that hospital records which were in existence but not introduced in evidence prove that the prosecutrix, Mrs. Ross, perjured herself in swearing that the defendant shot her twice (once in the bedroom and once on the front porch) and that the corroborating witness, a neighbor, also lied or was mistaken in swearing that she heard two shots. The hospital records show that the prosecutrix was shot only once. The medical report attached to this ground of the motion, however, also states: "The patient stated at the time of admission that she had been shot twice, however, only one entrance could be found." The exhibits are thus not inconsistent with the patient's testimony and lead to the conclusion that she was shot at twice (and erroneously thought she lead been hit) equally as well as to the conclusion that she committed perjury on the stand. There seems little reason for the victim of an affray who is about to undergo hospital examination to knowingly lie about how many wounds there are in her body. "In order for a new trial to be granted because of newly discovered evidence' it must be made to appear that a different result would probably obtain on another trial because of such newly discovered evidence." Brown v. Brown, 100 Ga. App. 515 (3) (112 SE2d 1). We find the evidence, at most, impeaching in character. This being so, the trial court did not err in overruling the motion for new trial.
Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., for appellee.
George J. L. Napier, for appellant.
SUBMITTED APRIL 2, 1974 -- DECIDED APRIL 9, 1974.
Friday May 22 12:23 EDT


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