
    6398.
    Smith v. The State.
    Decided August 5, 1915.
    Indictment for burglary; from Clarke superior court — Judge Brand. February 2, 1915.
    
      J ohn L. Booth, T. W. Bucher, for plaintiff in error.
    
      John B. Gamble, solicitor-general, Holden, Shachelford Meadow, contra.
   Wade, J.

1. Testimony that the sole witness as to the identity of the person who committed the crime stated that the criminal was “a yellow negro with bushy hair and mustache” was admitted, and this description fitted the accused so far as it went. The testimony was thereafter withdrawn from the jury by the presiding judge, who expressly directed them not to consider it, but to “decide the case as if the same had not been delivered.” The admission of this testimony was error, but, in view of the positive identification of the defendant by an unimpeached witness for the State, and also in view of the general character of the description in the statement objected to, which did not necessarily point to the accused, the testimony was not so damaging to the accused as to render it probable that the' error of the court in admitting it was not cured by the subsequent withdrawal. Thompson v. State, 12 Ga. App. 201 (4), 202 (76 S. E. 1072); McDonald v. State, 72 Ga. 55; Rentfrow v. State, 123 Ga. 539 (51 S. E. 596).

2. The alleged newly discovered evidence is not of sufficient importance to authorize the inference that it would probably produce a different result on another trial, and (without regard to the question as to whether it was merely cumulative and impeaching, or whether due diligence was exercised in discovering it) this court can not say that the trial judge abused his discretion in refusing the grant of a new trial on this ground.

3. The evidence supported the verdict, and there was no error in overruling the motion for a new trial. Judgment affirmed.  