Respondents Brief — Wallace v. Foster

IL. Argument and Citation of Authorities

1.

2.

The trial court’s judgment upon the facts is amply sup-

rted by the evidence and was properly left undisturbed

y the Supreme Court of Georgia is

The use of false testimony deprives one on trial of due

ee nerd when it is deliberately used with knowledge

of its falsity

. The refusal of witnesses to testify because of a

self incrimination does not deny due — to a defendant

on trial who might be benefited by ir testimony

. Habeas corpus is not an appropriate remedy to review those

aspects of the trial for murder which could have been

properly placed in issue on the murder trial

. The fact that press and radio commented unfavorably to pe-

titioner affords no reason for his release on habeas corpus __

. The decision of the Supreme Court of Georgia here under

review contains no error with respect to the Federal Con-

atitutional question ..... 2s 2

III. Conclusion

IV. Appendix

‘TABLE OF AUTHORITIES

Cases: Page

Adamson v. California, 832 U. 8S. 61

Barron v. Baltimore, 7 Pet. 243 *

Betis v. Brady, 316 U. S. 455, 461

Bowen v. Johnston, 306 U. S. 19

Carter v. Illinois, 399 U. S. 178

Delaney v. United States, 268 U. 8, 586, 589

District of Columbia v. Pace, 320 U. 8.

Eagles v. Samuels, 309 U. S. 304

Feldman v. United States, 382 U. S. 487, 490

Frank v. Mangum, 235 U. 8. 309

9

9

9

8

8

5

5

7

9

9

‘Hawk v. Olson, 326 U. S. 271 4,6

Louisiana v. Resweber, 329 U. S. 459, 469 7

8

9

7

6

6

7

7

5

5

7

5

Mooney v. Holo 294 U. S. 103, 112 4, 6

Moore v. Dempsey, 261 U. S. 86 __-__--_--_-_--____-__-_______ 8,

Palko v. Conn., 302 U. S. 319, 325

Pyle v. Kansas, 317 U. S. 213 4

v. The State, 68 Ga. App. 127

pe a Mass., 291 U. S. 106 ts

U. S. ex rel Tisi v. Todd, 264 U. S. 181

U. S. v. Johnson, 319 U. S. 508, 518

Von Moltke v. Gillies, 882 U. S. 708, 740

Waley v. Johnston, 316 U. S. 101, 104

Wallace v. Foster, 206 Ga. 661, 57 S. E. 2d 920 3,

Wallace v. The State, 204 Ga. 676, 51 8. E. 24 396... 2

Wallace v. The State, 205 Ga. 751, 55 S. E. 24145. 2, 10

Williams Mfg. Co. v. U. S. Shoe Machinery Corp, 816 U. S.

364, 3 San

Woolsey v. Best, 299 U. S. 1 RCE

Constitutions:

Constitution of Georgia, Art. I, Sec. I, Par. V 9

Constitution of Georgia, Art. I, Sec. I, Par. VI,

(Ga. Code Ann. 2-106)

Statutes:

A Sec. 59-806

Goortia een Cole’ an 59-807 _

Georgia Anno, Code, Sec. 27-1201

wwe

Miscellaneous:

47 Col. Law Rev. 470, “Habeas Corpus in Interstate Rendition” __

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1949

No. 854

JOHN WALLACE, Petitioner

VS.

A. B. FOSTER, Sheriff of Fulton

County, Georgia, Respondent

On Petition For Writ of Certiorari to

The Supreme Court of Georgia

Brief of Respondent

TO THE HONORABLE THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Respondent, A. B. Foster, Sheriff of Fulton County, Geor-

gia, files this brief in opposition to the petition for the writ

of certiorari to the Supreme Court of Georgia, filed in this

court by John Wallace, petitioner. The Attorney General of

Georgia is counsel for respondent Foster by direction of the

Governor of Georgia.

I. STATEMENT OF THE CASE

The petitioner, John Wallace, was indicted, tried and

convicted in Coweta County Georgia of the offense of mur-

der and sentenced to death by electrocution. Although peti-

1

2

tioner was tried alone, other persons were indicted jointly

with him, including Brooks, Gates, Strickland, Sivell and

Mobley. The relations of these joint defendants to the case

at bar will presently be made apparent.

Following his conviction, the petitioner made a timely

motion for new trial which he later amended to attack as

erroneous eleven specified rulings of the trial court. This

motion for new trial was overruled after argument and

the trial court’s judment in this respect affirmed on appeal.

Wallace v. The State, 204 Ga. 676; 51 S. E. 2d 395.

Thereafter, under appropriate state procedure, petitioner

made an additional ‘extraordinary motion” for new trial

upon the ground, intr alia, that certain material evidence had

become available to him since his conviction tending to show

that the victim was alive and well in Meriwether County

after the infliction in Coweta County of the blows which the

State contended produced his death. This motion was ac-

companied and supported by affidavits of joint defendants

Sivell and Mobley who, since the conviction of Wallace, had

voluntarily accepted verdicts of guilty with recommendation

of mercy and, in consequence, been sentenced to life imprison-

ment. (R. 36 and 38) Upon the murder trial of Wallace

these witnesses were sworn on behalf of petitioner but, act-

ing on advice of counsel (R. 35 and 39), refused to testify

for fear of incriminating themselves. This extraordinary

motion for new trial was denied by the trial court and its

judgment affirmed on appeal, Wallace v. The State, 205 Ga.

751; 55 S. E. 2d 145. In its opinion affirming this judgment

the Supreme Court of Georgia pointed out that one other joint

defendant, Strickland, was shown by the record to have had

the same opportunity to know the facts deposed to by Mobley

and Sivell and no effort was made to use him as a witness

or explain petitioner’s failure to do so.

By the instant petition for habeas corpus Wallace sought

to have the Superior Court of Fulton County, Georgia, where

he was then incarcerated, declare his conviction void as

wanting in due process in that:

(a)

(b)

3

Brooks and Gates, jointly indicted with petitioner,

witnesses for the State, testified falsely and that

their false testimony was procured by officers of

the State by promises of immunity from prosecu-

tion should they waive their constitutional immun-

ity from self-incrimination;

These officers suppressed the testimony of Mobley,

Sivell and Strickland by inducing them to claim

their immunity from self-incrimination ;

(c) The Sheriff of Coweta County, A. Lamar Potts,

(d)

(e)

paid a reward from his personal funds for infor-

mation against petitioner and, by his partisan activity

on behalf of the prosecution, rendered himself in-

competent to serve summons upon grand and petit

jurors and otherwise function as an officer of the

court, which functions he nevertheless undertook

to perform;

This sheriff held material witnesses, who had knowl-

edge of facts material to petitioner’s defense, in-

communicado and denied petitioner’s counsel op-

portunity to consult with them;

False reports, prejudicial to defendant, were cir-

culated by press and radio, thereby denying him the

right to a fair and impartial trial. (R. 1-6)

In the trial court the respondent did not demur or other-

wise attack the legal sufficiency of the petition. A response

was filed to the petition which created issues of fact on many

material allegations and set up by way of exhibits the entire

record of prior proceedings. (R. 7-12) Upon the issues thus

created the trial judge heard evidence and argument and,

after consideration, entered judgment denying the writ.

(R. 13) The Supreme Court of Georgia affirmed on appeal.

Wallace v. Foster, 206 Ga. 561; 57S. E. E. 2d 920; (R. 89).

Petitioner now seeks review and reversal of this judgment,

contending that error with respect to the Federal Constitu-

tional question crept into this decision.

4

II. ARGUMENT AND CITATION OF AUTHOR.

ITIES

1. The trial court’s ju ent upon the facts is amply

supported by the evidence and was properly left un-

disturbed by the Supreme Court of Georgia.

Unlike Pyle v. Kansas, 317 U.S. 213, Mooney v. Holohan,

294 U. S. 103 or Hawk v. Olson, 326 U. S. 271, the trial

court did not dispose of the petition for habeas corpus upon

the pleadings. By receiving evidence it permitted the petitioner

to open an inquiry into the very truth and substance of the

causes for his detention. Having heard this evidence, the

court passed upon and determined the issues of fact as it

was inescapably its duty to do. Our task here would have

been simpler had the trial court made separate and detailed

findings on each of the controverted facts but such findings

are not required under Georgia procedure. The evidence amply

supported, if it did not in fact demand, the judgment which

was rendered. The testimony alleged to be perjured was re-

affirmed as true. The witnesses who gave the testimony thus

attacked insisted that they gave it willingly and without coer-

cion and because they wished to testify. In testifying on this

hearing to the truthfulness of what they swore at the murder

trial and of their freedom from coercion, these witnesses,

Brooks and Gates, were sworn on behalf of petitioner and

he is concluded by their testimony. Counsel expressly dis-

claimed entrapment by them. (R. 16) Not only did peti-

tioner’s proof fail to establish the falsity of this testimony,

but it was entirely deficient in showing that the officers for

the State had any reason to believe the testimony to be false.

Testimony of witnesses, Mobley, Sivell and Strickland, al-

leged to have been suppressed, was shown by petitioner’s own

evidence to have been withheld because of the advice of coun-

sel of these witnesses and not as the result of some scheming

and malevolent purpose of the prosecution. (R. 35 and 39)

5

No evidence showed that the petitioner was in any way

injured by the zealous or even partisan activity of the sheriff

nor was any reason shown why this issue could have been

raised by appropriate motion for change of venue, by chal-

lenge to the array of jurors, or by other appropriate means

upon the original trial.

The evidence wholly fails to show diligence or indeed any

effort at all by petitioner’s counsel to see the witnesses whom

it was alleged were held incommunicado, or any application to

the trial Judge for leave to confer with the persons so held.

Unfavorable comment by press and radio was not shown

to have prejudiced any juror, or to have created an atmosphere

of mob domination at the time of the trial. Nor is any reason

given why the petitioner’s rights in this respect must be

asserted by an application for writ of habeas corpus, rather

than by timely motion for change of venue or other like mo-

tion in the murder trial.

Respondent respectfully insists, therefore, that the findings

of fact by the trial Judge should be accepted. Von Moltke v.

Gillies, 332 U. S. 708, 740. His appraisal of the living record

is entitled to respect and reliance. District of Columbia v.

Pace, 320 U. S. 698; United States v. Johnson, 319 U.S.

503, 518; Williams Manufacturing Co. v. United Shoe Mach-

inery Corporation, 316 U. S. 364, 367; Delaney v. United

States, 263 U.S. 568, 589.

2. The use of false testimony deprives one on trial of

due process only when it is deliberately used with

knowledge of its falsity.

No ruling of the trial court was envoked on the legal suf-

ficiency of the application for habeas corpus. On appeal,

however, the Supreme Court of Georgia stated, Wallace v.

Foster, supra, that on the petition release should be denied

as a matter of law. We now suggest that this application

might have been successfully attacked as to the first of the

grounds relied upon because there is no allegation that the

perjured testimony was knowingly and deliberately used. It

has never been decided that habeas corpus is available as a

6

remedy simply to question for a second time the truth of

testimony upon which a conviction was had. This court has

clearly stated and limited such an attack in Mooney v. Holo-

han, 294 U.S. 103, 112, to those cases where:

“... the State has contrived a conviction through

the preterse of a trial which in truth is but used as

a means of depriving a defendant of liberty through

a deliberate deception of the court and jury by the

presentation of testimony known to be perjured.”

(Emphasis supplied)

Pyle v. Kansas, 317 U. S. 213, places the same emphasis

on the “knowing use” of such perjured evidence by the State.

To the same effect is Hawk v. Olson, supra. After the re-

ception of evidence upon the trial of this application it be-

came abundantly clear that the application for the writ failed

to charge a knowing use of perjured evidence because peti-

tioner was without evidence to support such a charge rather

than because of any technical deficiency in the drafting of

pleadings.

3. i — of assem: ee testify povenee of

ear incrimination not deny

to a defendant on trial who might be benefited by

their testimony.

Petitioner’s argument here that the claim of immunity by

Mobley and Sivell deprived him of due process has the charm

of novelty. Such immunity from self incrimination is guar-

anteed them by the Georgia Constitution, Article I, Sec. I,

Par. VI, Georgia Code Ann. 2-106 in the following language:

“No person shall be compelled to give testimony

tending in any manner to crimirate him-elf.”

Should such a witness fail to claim his immunity and testify

voluntarily, his testimony may be used upon a subsequent trial.

Sheppard v. The State, 68 Ga. App. 127. No express provi-

sion of the Federal Constitution purports to guarantee to

a defendant the use of the testimony of a witness who is un-

willing to incriminate himself, and it can hardly be said in the

7

light of history that a right to use of such testimony is “im-

plicit in the concept of ordered liberty” and thus guaranteed

to him by the Fourteenth Amendment to the United States

Constitution. Palko v. Connecticut, 302 U. S. 319, 325.

Denial to a defendant of such testimony does not “offend some

principle of justice so rooted in the traditions and conscious

of our people as to be ranked as fundamental.” Snyder v.

Mass. 291 U.S. 105. The due process clause of the Four-

teenth Amendment does not withdraw the freedom of a

State to enforce its own measures of fairness in the administra-

tion of criminal justice unless it offends principles of justice

so rooted and so fundamental. Louisiana v. Resweber, 329

U. S. 459, 469. Since we cannot say that it is repugnant to

the conscious of mankind for a State to compel the trial of

one accused of crime although he is denied access to the testi-

mony of witnesses who claim their immunity from self-in-

crimination, we cannot say that petitioner's trial was wanting

in due process for this reacon.

4. Habeas corpus is not an remedy to re-

view those aspects of the for murder which

could have been properly placed in issue on the

murder trial.

As stated by Mr. Justice Douglas in Eagles v. Samuels,

309 U. S. 304,

“It is elementary that habeas corpus may not be

used as a writ of error.”

United States ex rel Tisi v. Todd, 264 U.S. 131; Woolsey

v. Best, 299 U.S. 1. Formerly habeas corpus afforded only

a bear legal review to determine whether or not the court

had jurisdiction and an inquiry into matters de hors the record

was in no case permitted. The only exception to this rule has

been clearly stated in Waley v. Johnston, 316 U. S. 101, 104,

where the court in substance said that only when “conviction §

has been in disregard of the constitutional rights of the ac-

cused, and where the writ is the only effective means of pre-

serving his right” (emphasis supplied) may habeas corpus

be used to open inquiry into the intrinsic fairness of proceed-

ings resulting in incarceration, such proceedings being unas-

sailable upon the face of the record. To the same effect are

Moore v. Dempsey, 261 U.S. 86; Mooney v. Holohan, 294

U. S. 103, Bowen v. Johnston, 306 U. S. 19; and Carter v.

Illinois, 399 U. S. 173. It is the absence of adequate State

corrective measures that constitutes the denial of due process.

Habeas Corpus in Interstate Rendition, 47 Col. Law Rev. 470.

The alleged disqualification of the sheriff to act on account

of prejudice, the denial of access to State’s witnesses and the

unfavorable comment upon his case by press and radio present

matters which, if hurtful to petitioner, could and should have

been raised on the murder trial. Among the remedies pro-

vided by Georgia for raising such issues are motion for con-

tinuance and motion for change of venue. Although there is no

express statutory provision which permits it, we submit that

the trial court had full authority by order to allow petitioner's

counsel to confer with a prisoner awaiting trial on an indict-

ment pending in that court. It was not want of appropriate ;

process, but petitioner’s failure to take advantage of available |

process which prevented these questions from being put in

issue.

5. The fact that press and radio commented unfavor-

ably to petitioner, affords no reason for his release

on corpus.

Petitioner contends that two cosmopolitan newspapers ac-

tively endeavored to prejudice each prospective juror against

him by publishing false news stories, editorials and radio

broadcasts thereby robbing petitioner of a fair and impartial

trial. He contends further that this campaign was continued

to his detriment while the Board of Pardons and Paroles was

considering the grant or denial of clemency. (Pet. for Cert.,

pp. 3 and 4, Par. 3.) Petitioner concludes that this conduct

of newspapers deprived him of the right to trial by an im r-

tial jury as contemplated by the Sixth Amendment to xe

Constitution of the United States. In his petition for habeas

corpus it was also contended that this publicity created an

atmosphere so hostile as to place him in danger of mob violence

in the event of his acquittal.

It is established beyond all question that the Bill of Rights,

—

9

when adopted, was for the protection of the individual against

the federal government and its provisions were inapplicable

to similar actions done by the states. Barron v. Baltimore, 7

Pet. 243; Feldman v. United States, 332 U. S. 487, 490;

Adamson v. California, 332 U. S. 46, 51. The Sixth Amend-

ment applies only to trials in federal courts and the specific

guarantees contained therein are not incorporated, as such

in the due process clause of the Fourteenth Amendment.

Betts v. Brady, 316 U. S. 455, 461. Georgia’s Constitution,

Art. I, Sec. I, Par. V, however, does contain such a guaranty

in the identical words of the Sixth Amendment. In felony

cases each prospective juror must be examined upon his voir

dire and found impartial before he may be put upon the ac-

cused, 1933 Code of Georgia, Secs. 59-806, 59-807 (Ap-

pendix, 13, 14). It is further provided that change of venue

may be granted on timely motion should it appear that an

impartial jury may not be obtained in the county where the

crime was allegedly committed. 1933 Code of Georgia, Sec.

277-1201. (Appendix 11). When the defendant predicates

such motion upon a reasonable danger of lynching or mob

violence this statute gives him an unqualified right to have

an adverse ruling reviewed by the Supreme Court of Georgia

and his trial stayed pending the appeal.

Not only do the pleadings and the evidence wholly fail to

show that the trial was mob dominated and but an

empty formality according to the tests established in Moore

v. Dempsey, 261 U. S. 86 and Frank v. Mangum, 235 U. S.

309, but they also fail to show any effort to employ the

remedies provided or to explain and excuse this failure.

6. The decision of the Supreme Court of Georgia here

under review contains no error with respect to the

Federal Constitutional question.

From what has been said above it seems abundantly clear

that the decision of the Supreme Court of Georgia (R. 89

et seq.) is in complete accord with the pronouncements of

this court upon the constitutional question. Neither the peti-

tion nor the evidence showed petitioner’s right to be released

urun habeas corpus. Many of the issues which petitioner

10

sought to raise are of the type which may have been reviewed

fully by writ of error. As to the perjured testimony, it was

not alleged to be knowingly used and was not proven to be

perjured or coerced. With regard to the alleged suppression

of testimony, the application for the writ shows that it was

unavailable because of a rightful claim of immunity from self-

incrimination, irrespective of the motive which prompted the

claim. The evidence shows this immunity was claimed upon

advice of counsel and shows no improper acts to indue the

claim. The evidence fails to show what the testimony might

have been had it been available. The exact issue was raised

upon extraordinary motion for new trial, was considered on its

merits, and relief denied by the trial court whose judgment was

affirmed on appeal. Wallace v. State, 205 Ga. 751; 55 S. E.

2d 145.

CONCLUSION

We, therefore, earnestly submit that petitioner has failed

to present a substantial Federal question of importance. The

judgment of the Supreme Court of Georgia could be reversed

on certiorari only upon determination that both the trial

court’s finding upon the facts was erroneous as a matter of

law, and that the application for the writ stated a good case

for petitioner’s release. Neither of such findings is warranted

by the record in this case.

Respectfully submitted,

P. O. Address : EUGENE COOK

201 State Capitol Attorney General of Georgia

Atlanta, Ga.

M. H. BLACKSHEAR, JR.

201 State Capitol Deputy Assistant Attorney General

Atlanta, Ga. of Georgia

EDWARD E. DORSEY

924 Healey Bldg. Of Counsel

Atlanta, Ga.

— =

11

APPENDIX

Georgia Constitution, 1945, Art. I, Sec. I, Par. V.

Georgia Code Ann., Cum. Pkt. Pt.

Sec. 2-105:

“Benefit of counsel; accusation; list of witnesses; compul-

sory process; trial by jury.—Every person charged with an of-

fense against the laws of this State shall have the privilege and

benefit of counsel; shall be furnished, on demand, with a

copy of the accusation, and a list of the witnesses on whose

testimony the charge against him is founded; shall have com-

pulsory process to obtain the testimony of his own witnesses;

shall be confronted with the witnesses testifying against him;

and shall have a public and speedy trial by an impartial jury.”

Georgia Code, 1933,

Sec. 27-1201:

“When and how venue changed.—The defendant in any

criminal case in the superior court may move, by petition in

writing, for a change of venue, whenever, in his judgment, an

impartial jury cannot be obtained in the county where the crime

is alleged to have been committed. Upon the motion it shall

not be necessary to examine all persons in the county, liable

to serve on juries, but the judge shall hear evidence by affi-

davit or oral testimony in support of or against the motion;

and if, from the evidence submitted, the court shall be satisfied

that an impartial jury cannot be obtained to try the case, the

judge shall transfer it to any county that may be agreed upon

by the solicitor general and the defendant or his counsel, to

be tried in the county agreed upon. If a county is not thus

agreed upon, the judge shall select such county as, in his judg-

ment, will afford a fair and impartial jury to try the case,

and have it transferred accordingly. The judge of the svu-

perior court of the circuit in which a crime is alleged to have

been committed may change the venue for the trial of said

case, on his own motion, with or without petition, whenever,

in his judgment, the accused party will be lynched, or there

is danger of violence being attempted to be committed on

12

said accused, if carried back, or allowed to remain in the

county where the crime is alleged to have been committed.

If a motion by petition shall be made by the accused for a

change of venue, said judge shall hear the same at chambers,

with or without the presence of the accused, at such time and

place as he may direct; and if the evidence submitted shall

reasonably show that there is probability or danger of lynching,

or other violence, then it shall be mandatory on said judge

to change the venue to such county as, in his judgment, will

avoid such lynching. The petitioner shall have the right to

except to the ruling of the court at such interlocutory hearing

and the bill of exceptions when signed shall operate as a super-

sedeas in the trial of said case, until passed on by the Supreme

Court: Provided, that said prisoner shall present said bill of

exceptions to the judge hearing said motion within six days

after the refusal to grant said motion. Said bill of exceptions

shall be filed in the office of the superior court cle.k of the

county of the alleged crime within two days after being signed

by the judge, and said clerk shall transmit said bill and the

required record of said case as early as possible and not ex-

ceeding 10 days from the filing in said office to the Supreme

Court. Said case in the Supreme Court shall be heard as

soon as possible, taking precedence of all other causes: Pro-

vided, that should the Supreme Court not be in session at

the time said writ of error is received in said Court it shall be .

the duty of the clerk of said Supreme Court to at once notify

the Chief Justice of said Court, or, in his absence or illness,

one of the other Justices of said Court, of the receipt of said

writ of error; and it shall be the duty of said Justice to at

once convene said Supreme Court for the purpose of hearing

said case, and said Supreme Court shall remand said case

with directions or pass such final order as may be deemed

proper and correct.”

Georgia Code, 1933,

Sec. 27-2002:

“When cases tried and when continued,—Every person

against whom a bill of indictment is found shall be tried at

13

the term of the court at which the indictment is found, unless

the absence of a material witness or the principles of justice

should require a postponement of the trial, and then the

court shall allow a postponement until the next term of the

court; and the court shall have power to allow the continuance

of criminal cases from term to term, as often as the principles

of justice may require, upon sufficient cause shown on

oath. . ;

Georgia Code, 1933,

Sec. 59-803:

“Challenge to the array.—The accused may, in writing,

challenge the array for any cause going to show that it was

not fairly or properly impaneled, or ought not to be put upon

him; the sufficiency of which challenge the court shall deter-

mine at once. If sustained, a new panel shall be ordered; if

not sustained, the selection of jurors shall proceed.”

Georgia Code, 1933,

Sec. 59-806:

“Questions on voir dire on trial for felony—On trials for

felonies any juror may be put upon his voir dire and the

following questions shall be propounded to him, viz.:

“1. ‘Have you, from having seen the crime committed,

or having heard any of the testimony delivered on oath,

formed and expressed any opinion in regard to the guilt or

innocence of the prisoner at the bar?’ If the juror shall

answer in the negative, the following question shall be pro-

pounded to him:

“2. ‘Have you any prejudice or bias resting on your mind

either for or against the prisoner at the bar?’ If the juror

shall answer in the negative, the following question shall be

propounded :

“3. ‘Is your mind perfectly impartial between the State

and the accused?’ If the juror shall answer this question in

the affirmative, he shall be adjudged and held a competent

14

juror in all cases where the offense does not involve the life

of the accused; but when it does involve the life of the ac-

cused, the following additional question shall be put to him:

“4, ‘Are you conscientiously opposed to capital punish-

ment?’ If he shall answer this question in the negative, he

shall be held a competent juror: Provided, nevertheless, that

either the State or the defendant shall have the right to

introduce evidence before the judge to show that the answers,

or any of them, are untrue; and it shall be the duty of the

judge to determine upon the truth of such answers as may be

thus questioned before the court.”

Georgia Code, 1933,

Sec. 59-807:

“Setting aside juror for cause.—If a juror shall answer any

of the questions set out in the preceding section so as to

render him incompetent, or he shall bé’so found by the judge,

he shall be set aside for cause.”

Georgia Code, 1933,

Sec. 70-204:

‘‘Newly-discovered evidence.—A new trial may be granted

in all cases when any material evidence, not merely cumula-

tive or impeaching in its character, but relating to new and

material facts, shall be discovered by the applicant after the

rendition of a verdict against him, and shall be brought to

the notice of the court within the time allowed by law for

entertaining a motion for a new trial.”

Georgia Code, 1933,

Sec. 70-301:

“Time of application; hearing, etc., in vacation; brief of

evidence.—All applications for a new trial, except in ex-

traordinary cases, shall be made during the term at which the

trial was had; and when the term shall continue longer than

30 days, the application shall be filed within 30 days from

the trial, together with a brief of evidence, subject to the

15

approval of the judge and subject to the right of amendment

allowed in applications for a new trial; but all applications

herein provided for may be heard, determined, and returned

in vacation.”

Georgia Code, 1933,

Sec. 70-303:

“Motion made after adjournment of court.—In case of

a motion for a new trial made after the adjournment of the

court, some good reason must be shown why the motion was

not made during the term, which shall be judged of by the

court. In all such cases, 20 days’ notice shall be given to the

opposite party. Whenever a motion for a new trial shall have

been made at the term of trial in any criminal case and over-

ruled, or when a motion for a new trial has not been made

at such term, no motion for a new trial from the same verdict

shall be made or received, unless the same is an extraordinary

motion or case, and but one such extraordinary motion shall

be made or allowed.”