
    28531.
    GOLDEN v. THE STATE.
    Decided November 30, 1940.
    
      M. G. Edwards, J. W. Bowner, G. G. Webb, P. D. Rich, B. E. Wheeler, for plaintiff in error.
    
      
      B. A. Patterson, solicitor-general, A. H. Gray, Hooper, Hooper & Miller, contra.
   Broyles, C. J.

The defendant and his wife were jointly indicted for the offense of murder, but were tried separately, and a verdict of guilty of voluntary manslaughter was returned in each case. In this case special grounds 1 and 2 of the motion for new trial are without substantial merit. The short excerpts from the charge complained of in special grounds 3 and 4, when considered in the light of the entire charge and the facts of the case, are not erroneous. Special ground 5 assigns as error the refusal of the court to give a requested charge upon the presumption arising from the failure of a party to produce the best evidence within his power, as set out in Code, § 38-119. The ground is without merit, since it is well settled that the provisions of that section are not applicable to a criminal case. Waller v. State, 164 Ga. 128 (8), 135 (138 S. E. 67), and cit. The last special ground is based upon alleged newly discovered evidence. The affidavits of the “newly discovered” witnesses related to alleged threats against the accused made by the deceased to third parties, in the absence of the accused, and some time before the homicide. The ground shows, however, that the threats were never communicated to the accused until after the homicide. Furthermore, the affidavits presented by the movant were met by counter-affidavits presented by the State, and the judge was the trior of the issue thus raised, and his overruling of the ground was not error.

The verdict was amply authorized by the evidence; and the refusal to grant a new trial was not error.

Judgment affirmed.

MacIntyre and Gardner, JJ., concur.  