
    5447.
    Morgan v. The State.
   Russell, C. J.

1. Where a motion for a new trial is based on newly discovered evidence, and there is conflict in the testimony, and the comparative credibility of witnesses is in issue, the trial judge is the trior of all facts in controversy, and a reviewing court will not control his decision as to any point at issue which is dependent upon the credibility of the witnesses. Especially will the refusal of a trial judge to grant a new trial upon the ground of newly discovered evidence not be reversed where the showing as to a portion of the alleged newly discovered evidence is not accompanied by proper affidavits attesting the good character of the affiants, aid when it further appears that the evidence alleged to be newly discovered might, by the exercise of ordinary diligence, have been ascertained before the trial.

Decided June 22, 1914.

Indictment for assault and battery; from Pike superior court-judge Eobert F. Daniel. December 19, 1913.

T. E. Patterson, for plaintiff in error.

E. M. Owen, solicitor-general, contra.

2. The evidence authorized the verdict; there was no error on the trial, and the court did not err in refusing a new trial.

Judgment affirmed.

Roan, J., absent.  