
    Phillips vs. The State of Georgia.
    Where three witnesses swore positively that defendant was present and committed the offense, newly discovered evidence of two witnesses that he had left previously to the time alleged and had not returned, would not probably change the result, and therefore does not necessitate a new trial.
    Criminal law. New trial. Before Judge Crisp. Sum ter Superior Court. October Term, 1878.
    Reported in the decision.
    Simmons & Simmons, for plaintiff in error.
    C. B. Hudson, solicitor general, by B. R. Hollis, for the state.
   "Warner, Chief Justice.

The defendant was indicted for the offense of a misde meanor, and charged with having played and bet at a game of cards in violation of the statute, and on his trial therefor was found guilty. A motion was made for a new trial, on the ground that the verdict was contrary to law and the •evidence, and for newly discovered evidence — which was overruled, and the defendant excepted.

The only ground insisted on here was the newly discovered evidence. Three witnesses swore positively that they saw the defendant playing and betting at cards with Eli Wells, in the city of Americus, in February, 1877. The newly discovered evidence is that shown by the affidavit of Oliver and Wheeler, that Eli Wells left Americus before the 15th of January, 1877, and hád not been there since. These two witnesses must be understood as intending to mean that they did not see Eli Wells in Americus after the 15th of January. The evidence of these two witnesses would not probably change the result, if a new trial was had, in opposition to the three witnesses who swore positively that Wells was there in February, 1877, and played and bet at cards with the defendant. Three affirmative witnesses should, and most probably would, outweigh the negative testimony of the newly discovered witnesses. There was no error in overruling the defendant’s motion for a new trial.

Let the judgment of the court below be affirmed.  