
    9083.
    Phillips v. The State.
   Broyles, P. J.

. Under the repeated rulings of this court, and of the Supreme Court, where a motion for a new trial is based upon alleged newly discovered evidence, and affidavits disputing this ground of the motion are introduced, the trial judge is the trior of the disputed facts and of the credibility of the witnesses, and his judgment thereon will not be controlled unless a manifest abuse of his discretion is shown. In the instant case no such abuse appears.

(a) Under the facts of the case it was not error for the court to consider the various affidavits (objected to by the accused) introduced by the State on its counter-showing.

2. In connection with one of the grounds of the amendment to the motion for a new trial, relating to the alleged newly discovered evidence, complaint is made that the defendant was surprised by the introduction of a witness whose name was not on the indictment and who had not been subpoenaed. Inasmuch as the accused waived arraignment, copy of the indictment, and list of witnesses, and made no motion for a continuance upon the ground of surprise, nor invoked any ruling thereupon, there is no merit in this portion of the ground.

Decided October 30, 1917.

Indictment for selling intoxicating liquor; from Franklin superior court — Judge Cobb. July 11, 1917.

W. B. Little, for plaintiff in error.

A. S. Skeltoh, solicitor-general, contra.

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.  