
    HOPE v. THE STATE.
    1. When a party is induced to go to trial upon the statement of a witness, that he will testify to a given state of facts, to which another witness, would testify if he were present, and during the progress of the trial the witness-communicates to the party that he will not testify as promised, and no motion for a postponement is made, a new trial will not be-granted upon the ground of the surprise resulting from the withdrawal by the witness of his promised statement.
    2. There was no error in refusing to grant a new trial.
    Submitted November 21,
    Decided December 21, 1905.
    
      Indictment for adultery and fornication. Before Judge Talia-ferro. City court of Sandersville. October 2, 1905.
    The motion for a new trial, beside the general grounds, contained two special grounds, one based upon newly discovered evidence, and the other setting forth the following statement of facts: The defense relied upon two witnesses to establish an alibi, and these witnesses were absent when the case was called for trial, but counsel for the accused was assured by another witness that he could swear to the alibi of the accused. Belying upon this witness to establish such fact, the accused went to trial. During the trial this witness informed counsel for accused that he could not testify to the alibi, and the accused was thus prevented from setting up this defense. Attached to this second ground was an affidavit of counsel that the. facts set forth were true, but there was no affidavit from the persons named in the ground that if they had been present they would have testified to an alibi.
    
      Marvin L. Gross, for plaintiff in error.
    
      G. TI. Howard, solicitor, contra.
   Cobb, P. J.

When counsel for the accused learned that the witness upon whose statement he relied in reference to the proof of' an alibi had misled him, he should have called the attention of the-court to the matter and made a motion for a postponement of the-case. As knowledge of this fact came to him pending the trial,, he could not take the chances of a favorable verdict, and, after an unfavorable verdict, insist upon a new trial being granted on account of a fact which came to his knowledge before verdict. In. Rolfe v. Rolfe, 10 Ga. 143, the evidence, which by oversight had not-been introduced, was offered pending the trial, and it was held that, under the circumstances it was error to reject the evidence, and a. new trial was granted on this ground. Even if the ruling laid down in the case of Wilson v. Brandon, 8 Ga. 136, is to be followed at all at the present time, the present case, upon its facts, is not. controlled by that ruling. In that case the motion for a new trial contained an affidavit of the absent witness that if present he would have testified to the fact which the plaintiff had failed to prove on account of being misled by the statement of another witness. That case should not be extended beyond its peculiar ¡facts.

The alleged newly discovered evidence was impeaching in its nature, and the rule is well settled that the discretion of the judge in overruling a motion for a new trial based upon the discovery of evidence of such a character will not be controlled. The evidence authorized the verdict, and there was no error in refusing to grant the new trial.

Judgment affirmed.

All the Justices concur.  