
    Harris v. The State.
    No. 1635.
    January 16, 1920.
    Rehearing denied February 14, 1920.
   Gilbert, J.

1. The evidence admitted as to dying declarations was sufficient to make out a prima facie case that the declarations were made by the deceased while in articulo mortis, conscious of his condition, as to the cause of his death and the person who killed him, and there was no error in submitting them to the jury under proper instructions. No complaint is made in regard to the instruction of the court on that subject. Harper v. State, 129 Ga. 770 (3), 773 (59 S. E. 792); Hawkins v. State, 141 Ga. 212 (80 S. E. 711); Fitzpatrick v. State, 149 Ga. 95 (99 S. E. 128).

2. Applications for new trials on the ground of newly discovered evidence are addressed largely to the discretion of the trial judge, and this court will not reverse his decision refusing a new trial on such ground unless it is abused. Hall v. State, 141 Ga. 7 (80 S. E. 307). They are not favored. Burge v. State, 133 Ga. 431 (2) (66 S. E. 243). It must also appear by affidavit of movant and each of his counsel that they did not know, and could not by the exercise of ordinary diligence have discovered the existence of the new evidence. Smiley v. Smiley, 144 Ga. 546 (3) (87 S. E. 668). The affidavits of movant and his counsel in this ease do not measure up to this requirement. Furthermore, the State made a counter-showing as to the alleged newly discovered evidence, which is in conflict therewith. O’Neil v. State, 104 Ga. 538, 543 (30 S. E. 843). The verdict is supported by evidence. For all of these reasons the judgment refusing a new trial will not be disturbed.

Judgment affirmed.

All the Justices concur.

Indictment for murder. Before Judge Wrigbt. Floyd superior court. August 16, 1919.

Len. B. Guillebeau and W. H. Ennis, for plaintiff in error.

Clifford Walker, attorney-general, Claude H. Porter, solicitor-general, M. C. Bennet, E. S. Taylor, M. B. Eubanks, and F. W. Copeland, contra.  