
    23113.
    Burkhalter v. The State.
    Decided June 13, 1933.
   Broyles, C. J.

1. In the light of the note of the trial judge, special ground 1 of the motion for a new trial (complaining of the refusal to continue the case) is without merit.

2. The charge on the subject of “conspiracy” was not error for any reason assigned.

3. Special ground 3 of the motion for a new trial complains of an excerpt from the charge of the court. In a note attached to his approval of the ground, the judge states that counsel for the defendant orally requested the court to give in charge the principle of the charge complained of. Furthermore, it does not appear that the charge was prejudicial to the accused. The ground is without merit.

4. The remaining special grounds of the motion are based upon alleged newly discovered evidence. Upon a careful consideration of these grounds, this court is of the opinion that the defendant, by the exercise of proper diligence, could have discovered the alleged newly discovered evidence before his trial. As stated by the trial judge in his order refusing to grant a new trial, “A new trial should not be granted on grounds 4, 5, and 6 [the grounds based upon alleged newly discovered evidence]. . . The purported statements of the said Woodrow DeLoach axe mere hearsay, and he is a fúgitive not within the jurisdiction of the court. The alleged burglary was committed on April 24, 1932. The trial occurred on November 17, 1932. In the meantime the defendant was out on bond. The said newly discovered witness J. J. Collins resided at the time of the burglary, and now resides, within 75 to 100 feet of the scene of the crime, and the said newly discovered witness Miss Era Bagwell at the time was boarding and is still boarding at a home adjoining the property where the offense was committed. No reason appears why the defendant did not or could not interview these witnesses prior to the trial and discover the testimony on which he now seeks a new trial. The court is of the opinion that had the defendant shown proper diligence, he could have discovered this testimony prior to the verdict.”

5 The evidence authorized the verdict and the refusal to grant a new trial was not error.

Judgment affirmed.

MacIntyre <md Guerry, JJ.,' concur.

P. M. Anderson, E. O. Elmore, for plaintiff in error.

J. T. Grice, solicitor-general, contra.  