
    Emma Jones, plaintiff in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Criminal Law — Instruction—Impeachment of Witnesses.— Where the Court charged the jury, “that every witness in the case is to be believed until impeached in some one of the modes known to the law. A jury cannot arbitrarily, of their own motion, set aside the evidence of any witness; the presumption of innocence attaches to witnesses which remain until removed by proof,” and there was no impeaching evidence, unless the statement of the defendant not under oath shall be considered as such, in reference to which the Court charged the jury, “that they were the exclusive judges of the weight that was due to such statement,” the charge was not erroneous. (R.)
    2. New Trial — Newly Discovered Evidenced — Newly discovejed evidence which would not probably have produced a different result is no ground of new trial. (R.)
    
      Criminal law. New trial. Witnesses. Newly discovered evidence. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. '
    For the facts of this case, see the decision.
    ^ John Mirredge, by A. H. Orr, for plaintiff in error.
    John T. Grenn, Solicitor General, for the State.
    
      
      Criminal Law — Impeachment of Witness. — While the statute prescribes but three modes of impeachment, it clearly does not mean thereby that for no other reason can a witness be discredited. This is too well established by legal principles relating to the credibility of witnesses, and especially the power given by the law to the jury in passing upon the weight to be given human testimony to require further agreement. We do not think there was any intention of this court to declare a contrary principle in the case of Jones v. State, 48 Ga. 163; Chapman v. State, 109 Ga. 163, 34 S. E. Rep. 369.
    
    
      
      New Trial — Newly Discovered Evidence. — See Ency. Dig. Ga. Rep., vol. 9, p. 675.
    
   Warner, Chief Justice.

The defendant was indicted for the offense of larceny after a trust delegated. On the trial, the defendant was found guilty. A motion for a new trial was made on the ground of error in the charge of the Court, and on the ground of newly discovered evidence, which was overruled, and the defendant excepted. The alleged error in .the charge of the Court is, “that every witness in ¿he case is to be believed until impeached in some one of the modes known to the law. A jury cannot arbitrarily, of their own motion, set aside the evidence of any witness; the presumption of innocence attaches to witnesses which remains until removed by proof.” There was no evidence offered on the trial to impeach the credibility of the witnesses examined on the part of the State, unless the statement of the defendant to the jury, not under oath, shall be considered as such. The Court charged the jury, in relation to the defendant’s statement, “that you are the exclusive judges of the weight that was due to that statement; you are to give it just such weight as in your judgment it is entitled to.” The statement of the defendant, not under oath, cannot be said, in the legal sense of that term, to impeach the testimony of the witnesses for the State delivered under oath. We find no error in the charge of the Court to the jury, inasmuch as the Court left the credibility of the witnesses on the part of the State, in connection with the defendant’s statement, to them.

The newly discovered evidence is that the defendant expects to prove that she was at a different place on the day the offense is alleged to have been committed, but where she was, does not appear ; that she was not the owner of a certain alpaca dress which one of the witnesses for the State swore she had on at the time of receiving the clothes to wash, and *that there was a mulatto woman living in Atlanta by the name of Dora Robinson, about the time of the alleged larceny. If all this newdy discovered evidence had been admitted on the trial, it would not even probably have produced a different result. The Courts do r;ot favor new trials on the ground of newly discovered evidence.

Det the judgment of the Court below be affirmed.  