
    20429.
    Wheatley v. The State.
   Broyles, C. J.

1. The court’s charge upon the law of circumstantial evidence and upon, the subject of recent possession of stolen property was not error for any reason assigned.

2-, The 2d special ground of the motion for a new trial, complaining of an excerpt from the charge of the court, is without merit.

Decided May 14, 1930.

Hammond Johnson, Clement E. Button, for plaintiff in error.

Robert McMillan, solicitor-general, E. JJ. Kenyon, contra.

3. The ground based upon alleged newly discovered evidence admits that the evidence was known to the movant before his trial. It is obvious, therefore, that the evidence was not newly discovered. However, it is alleged in the ground that the defendant was “in such a state of mind, caused by nervousness and worry because of the impending trial in Hall county, where he had been arrested and not only charged with larceny, but also was arrested for contempt of court', which contempt charge grew out of the same transaction, and was discharged on pay- ' ment of costs, that movant failed to tell his attorneys about this material evidence, and was in such a state of mind that he did not even remember” knowing of the evidence “until he was asked [about it] some weeks after the trial by one of his attorneys.” Movant also introduced the affidavits of his attorneys and other persons to the effect that he was “mentally not strong.” Held: The trial judge saw the defendant during the trial and heard his statement to the jury, and necessarily observed his manner and demeanor, and was in a much better position than this court to determine his mental condition, and whether that condition was such as to relieve him of the exactions of the statute in regard to newly discovered evidence. Under all the facts of the case as disclosed by the record, this court can not hold that the judge abused his broad discretion when he overruled the ground based upon the alleged newly discovered evidence.

3. The evidence amply authorized the verdict.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  