
    12674.
    SWORDS v. THE STATE.
    Failure to charge the jury as to the form of verdict to be rendered in the event of an acquittal, although they were charged as to the form of verdict to be rendered if they should find the defendant guilty of seduction or of fornication, was not cause for a new trial to one convieted of seduction, where he admitted, in his statement at the trial, that he was guilty of fornication, and a verdict of acquittal would not have been authorized.
    Refusal to grant a new trial because of alleged newly discovered evidence was not an abuse of discretion.
    Decided November 16, 1921.
    Indictment for seduction; from DeKalb superior court — Judge Hutcheson. June 11, 1921.
    
      E. C. Buchanan, L. J. Steele, for plaintiff in error.
    
      A. M. Brand, solicitor-general, contra.
   Broyles, C. J.

The defendant was convicted of seduction, and complains in his motion for a new trial that the judge in his charge instructed the jury as to the forms of. their verdict if they should find the defendant guilty of seduction or of fornication, but failed to give any form of a verdict for acquittal. There is no merit in this exception to the charge, since there was no evidence authorizing an acquittal, and the defendant in his statement to the jury admitted that he was guilty" of fornication.

The alleged newly discovered evidence being impeaching in its character, and it appearing from the facts of the case that it probably "could have been discovered before the trial of the case if the defendant had exercised ordinary diligence, the discretion of the court in overruling that ground of the motion for a new trial which was based upon the alleged newly discovered evidence will not be controlled.

The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  