
    9545.
    Trentham v. The State.
   Harwell, J.

1. The defendant being charged with the sale of whisky and also with having it in his possession, there was no error in admitting testimony that apparatus for distilling whisky was found on his ’ premises. This was a circumstance which could properly be considered by the jury. Compare Craig v. State, 9 Ga. App. 233 (70 S. E. 974) ; Cole v. State, 120 Ga. 485 (48 S. E. 156).

2. As to the special ground of-the motion for a new -trial based on alleged newly discovered - evidence, the State made a counter-showing, from which it appears that the defendant knew of some of this alleged newly discovered evidence/ and had some of the persons who made affidavits to it subpcenaed as witnesses. It further appears, from the circumstances, that the defendant necessarily had knowledge of some of this .alleged newly discovered evidence. All of it is cumulative and impeaching in its character. This ground of the motion therefore affords no reason for the grant of a new trial. Champion v. State, 21 Ga. App. 656 (94 S. E. 828); Collins V. State, 21 Ga. App. 128 (94 S. E. 77).

Decided April 2, 1918.

Accusation of misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.

Gñffith & Matthews, Irwin & Tison, W. W. Mundy, for plaintiff in error. J. A. Wright, solicitor, contra.

3. The contention that there was no affidavit upon which to base the accusation and that it was therefore void and the trial invalid, not being made in the trial court, but only in the brief of counsel for the plaintiff in error, will not be considered by this court.

4. The defendant was charged with the sale of intoxicating liquor, and also, in another count, with having it in his possession, and was convicted on both counts. There was ample evidence to sustain the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., ooneur.  