
    6908.
    Mosley v. The State.
    Decided March 24, 1916.
    Indictment for misdemeanor; from Thomas superior court-judge Thomas. August 7, 1915.
    
      Fondren Mitchell, Lebbeus Delete, for plaintiff in error.
    
      J. A. Willces, solicitor-general, contra.
   Russell, C. J.

When evidence of a new and independent fact, indicating the innocence of one convicted of crime, which could not have been obtained at the trial by the exercise of ordinary diligence and which probably would produce a different result, is introduced in support of a ground of a motion for new trial based thereon, a new trial should be granted, even though the newly discovered testimony he in a sense impeaching and cumulative. Saylors v. State, 9 Ga. App. 227 (70 S. E. 975). However, in the case sub judice, where the testimony alleged to have been discovered after the trial consisted of nothing more than an effort to show the improbability of the State’s witnesses having had an opportunity to purchase the intoxicating liquor in question without the knowledge of the affiants, and to thus impeach the previous testimony of the witnesses for the State, it was not error to refuse a new trial, especially in view of the fact that the alleged newly discovered testimony was merely cumulative of similar impeaching testimony which had been offered at the trial. Judgment affirmed.  