
    6056.
    Brantley v. The State.
    Decided January 20, 1915.
    Rehearing denied February 11, 1915.
    Indictment for keeping liquor at place of business; from Campbell superior court — Judge B. W. Freeman. September 19, 1914.
    
      J. F. Golightly, for plaintiff in error.
    
      George M. Napier, solicitor-general, contra.
   Broyles, J.

1. The provisions of section 5881 of the Civil Code do not apply to contradictory affidavits made by alleged newly discovered witnesses and used in the counter-showing in a motion for a new trial.

2. Where a motion for a new trial is based on alleged newly discovered evidence, the trial judge has a very broad discretion, and his refusal to grant a new trial will not be controlled unless his discretion has been abused. And especially is this true when the alleged newly discovered evidence is cumulative and impeaching in character, and' is met with a counter-showing contradicting it. Moody v. State, 1 Ga. App. 772 (9) (58 S. E. 262); Clark v. State, 5 Ga. App. 605 (5) (63 S. E. 606); Brown v. State, 8 Ga. App. 691 (70 S. E. 40); Rivers v. State, 8 Ga. App. 703 (70 S. E. 50); Wilcher v. State, 118 Ga. 196 (44 S. E. 995); Jordan v. State, 120 Ga. 864 (5) (48 S. E. 352); Washington v. State, 124 Ga. 424 (13) (52 S. E. 910); Young v. State, 131 Ga. 498 (62 S. E. 707); Bowers v. State, 135 Ga. 310 (68 S. E. 1095); Reeves v. State, 135 Ga. 311 (69 S. E. 536).

3. The alleged newly discovered evidence is cumulative and impeaching in character, and does not require the grant of a new trial.

4. The evidence authorized the verdict.

5. No error was committed by the court in overruling the defendant’s ob-

jection to the State’s counter-showing or in refusing to grant a new trial. Judgment affirmed.

Russell, C. J.,

dissenting. Under the rulings in Dale v. State, 88 Ga. 552 (15 S. E. 287), Cooper v. State, 91 Ga. 366 (18 S. E. 303), and Fellows v, State, 114 Ga. 233 (39 S. E. 885), as well as the ruling of this court in Saylors v. State, 9 Ga. App. 227, 229, 230 (70 S. E. 975), it is my opinion that the court erred in overruling the motion for a new trial based upon the alleged newly discovered evidence.  