New trial granted based on error in jury charge.

- In a condemnation action, the lessee was entitled to a new trial because the trial court erred in the court's charge to the jury regarding lost profits; the jury instructions misstated the law and, when considered in the context of the charge as a whole, rendered the charge confusing, contradictory, and unreconcilable. Action Sound, Inc. v. DOT, 265 Ga. App. 616, 594 S.E.2d 773 (2004).

Trial court erred in denying new trial.

- Trial court erred in not granting beauty pageant operators' motions for judgment notwithstanding the verdict, directed verdict, or a new trial, pursuant to O.C.G.A. §§ 5-5-23 and9-11-56, in an action by a beauty pageant contestant who was banned from the contest after it was rumored that the contestant was "stuffing" the ballot boxes, as the contestant failed to establish the contestant's claim for tortious interference with business relations because the contestant did not offer direct evidence of the operators' actions to the contestant's alleged loss of work and earnings following the pageant, nor could the operators be held liable for tortious interference with the contestant's relationships with others, as the contestants were not strangers to those relationships; it was similarly error to deny the motions with respect to the contestant's slander claim, as the contestant failed to show that an employee was directly ordered to make the statements by the employer, there was no respondeat superior liability in slander cases, and the statements between the contest's joint venturers were privileged as intra-corporate communications and accordingly, publication was also not shown. Galardi v. Steele-Inman, 266 Ga. App. 515, 597 S.E.2d 571 (2004).

Policy of law to end litigation must yield to supreme object of achieving full justice.

- Despite often-stated policy of law to end litigation, for which reason courts ordinarily look with disfavor upon grants of new trial upon newly discovered evidence, this policy of law must and does yield to higher and supreme object of law which is to do full justice in all cases. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Requirements for grant of new trial based on newly discovered evidence.

- To obtain a new trial on the basis of newly discovered evidence, a movant must satisfy the court: (1) that the evidence has come to the movant's knowledge since the trial; (2) that it was not owing to the want of due diligence that the movant did not acquire the evidence sooner; (3) that the evidence is so material that it would probably produce a different verdict; (4) that the evidence is not cumulative only; (5) that the affidavit of the witness is attached to the motion or the affidavit's absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Young v. State, 194 Ga. App. 335, 390 S.E.2d 305 (1990); Eliopulos v. State, 203 Ga. App. 262, 416 S.E.2d 745, cert. denied, 203 Ga. App. 906, 416 S.E.2d 745 (1992).

Requirements for grant of new trial based on newly discovered evidence are: (1) that evidence has come to knowledge of moving party since trial; (2) that it was not owing to want of due diligence that moving party did not acquire the evidence sooner; (3) that the evidence was so material that it would probably produce a different verdict; and (4) that it is not cumulative only. Turner v. State, 139 Ga. App. 503, 229 S.E.2d 23 (1976); Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981); Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

It is incumbent on party who asks for new trial on ground of newly discovered evidence to satisfy court: (1) that evidence has come to the party's knowledge since trial; (2) that it was not owing to want of due diligence that the party did not acquire it sooner; (3) that the evidence is so material that it would probably produce a different verdict; (4) that the evidence is not cumulative only; (5) that affidavit of witness should be procured or the affidavit's absence accounted for; and (6) that new trial will not be granted if only effect of evidence will be to impeach credit of witness. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980); Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981); Alexander v. State, 186 Ga. App. 787, 368 S.E.2d 550 (1988); Lawrence v. State, 227 Ga. App. 70, 487 S.E.2d 608 (1997).

In motion for new trial made upon alleged newly discovered evidence, when it appears that latter is purely cumulative, and it does not appear that with additional evidence a verdict different from that already rendered would probably result, and when it further appears that the defendant and defense counsel could, by exercise of slightest diligence, have discovered such evidence before or at time of trial, this court will not hold that trial judge abused the judge's discretion in overruling motion. Stargel v. State, 52 Ga. App. 74, 182 S.E. 406 (1935).

To obtain a new trial on the basis of newly discovered evidence, the evidence supporting the motion must be admissible, and must also satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not cumulative only; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. Collins v. Kiah, 218 Ga. App. 484, 462 S.E.2d 158 (1995).

Post-trial declaration.

- Law is settled that a post-trial declaration by a state's witness that the witness's former testimony was false is not a ground for a new trial. Brown v. State, 209 Ga. App. 314, 433 S.E.2d 321 (1993).

Movant bears burden of showing meeting of standards for granting new trial. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Although a codefendant who testified against the defendant at defendant's criminal trial indicated that a certain sentence was recommended by the prosecutor's office, and thereafter, a much more lenient sentence was actually imposed on that codefendant, the defendant failed to show that the state committed a Brady violation by not disclosing the more favorable deal that the state made with the testifying codefendant as the prosecutor testified that the codefendant had testified accurately as to the sentence recommendation, but that the sheriff's office had sought a more lenient sentence for the defendant, which was in fact imposed; accordingly, the defendant's new trial motion was properly denied and the convictions were properly affirmed. Ford v. State, 273 Ga. App. 290, 614 S.E.2d 907 (2005).

When all requirements are met, grant of new trial is mandatory.

- While section states that new trial may be granted, in proper case, when all rules of law have been met, new trial must be granted. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Failure to show one requirement is sufficient to deny motion for new trial. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

All six requirements must be complied with to secure a new trial. Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131, cert. denied, 186 Ga. App. 919, 368 S.E.2d 131 (1988).

Effect of noncompliance with section's requirements.

- When requirements of section are not complied with, it is not error to overrule ground of motion for new trial based upon evidence alleged to be newly discovered, which might produce a different result should a new trial be granted. Blackwell v. Houston County, 168 Ga. 248, 147 S.E. 574 (1929).

Grants of new trials on ground of newly discovered evidence are not favored by courts. McDuffie v. State, 2 Ga. App. 401, 58 S.E. 544 (1907); Staton v. State, 174 Ga. 719, 163 S.E. 901 (1932); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951); Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980).

Motions for new trials based upon newly discovered evidence are not favored. Norman v. Goode, 121 Ga. 449, 49 S.E. 268 (1904); Harris v. State, 149 Ga. 724, 102 S.E. 159 (1920); Reed Oil Co. v. Harrison, 26 Ga. App. 37, 105 S.E. 496 (1920); Hart v. State, 207 Ga. 599, 63 S.E.2d 390 (1951); James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Great caution should be exercised in granting new trial on ground of newly discovered evidence. Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951).

When severance not mandatory, denial of new trial not error.

- When defendant's trial counsel did not move to sever defendant's two aggravated assault charges, which were similar in fact pattern and would have presumably been admitted in the trial of the other, it was found that severance was not mandatory and the defendant did not show prejudice as a result of the decision to not so move. The trial court did not err in denying the defendant's motion for new trial on the ground that the defendant's trial attorney rendered ineffective assistance by failing to seek severance of the charges. Collier v. State, 266 Ga. App. 345, 596 S.E.2d 795 (2004).

Reasons that new trials under section are not favored.

- Generally, granting of new trials on newly discovered evidence is not favored, because it tends to discourage diligence and encourage lack of diligence by litigants and their counsel on the first trial, causes delay in administering of justice, and loss of time, labor, and expense of another trial. Turner v. State, 44 Ga. App. 348, 161 S.E. 626 (1931).

Motions for new trial are not intended to serve purpose of cross-examination. Greer & Co. v. Raney, 120 Ga. 290, 47 S.E. 939 (1904); Bullington v. Chandler, 110 Ga. App. 803, 140 S.E.2d 59 (1964).

Discretion of judge.

- Motion must be addressed to the sound legal discretion of court, and the court alone must be trier of weight and credibility of testimony. Morgan v. State, 16 Ga. App. 559, 85 S.E. 827 (1915).

Motions for new trial under section are addressed to the sound discretion of the judge. Aycock v. State, 188 Ga. 550, 4 S.E.2d 221 (1939); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980); Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Grant or denial of motion for new trial based on newly discovered evidence is largely discretionary with trial judge. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Applications for new trial are in large part addressed to the sound discretion of the trial judge. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

Motions for new trial on the ground of newly discovered evidence are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

Grant or denial of a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court. The court's ruling will not be disturbed absent an abuse of that discretion. Wilson v. State, 193 Ga. App. 374, 387 S.E.2d 642 (1989).

In a situation in which a juror did not admit during voir dire that the juror knew the victim, but during trial, the juror indicated that the juror was unaware of the victim's name but that the juror knew the victim, but in fact, the victim had worked in the juror's shop years earlier, the trial court did not err in denying the defendant's motion for a new trial, as the juror indicated that the juror would be fair and impartial, the juror had not been dishonest, but merely mistaken, during voir dire, and the trial court was within the court's discretion because a corrected response by the juror during voir dire would not have provided a valid basis for a challenge for cause. Todd v. State, 275 Ga. App. 459, 620 S.E.2d 666 (2005).

New trial should not be granted unless it appears different verdict will result.

- To warrant granting of new trial under section, it must be shown that different result may obtain at second trial. Morris Storage & Transf. Co. v. Wilkes, 1 Ga. App. 751, 58 S.E. 232 (1907); Mayor of Athens v. Peeler, 6 Ga. App. 379, 65 S.E. 45 (1909); Wright v. Wright, 25 Ga. App. 721, 104 S.E. 456 (1920); Oglesbee v. State, 25 Ga. App. 750, 105 S.E. 51 (1920); Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474, 118 S.E. 435 (1923); Alexander v. Allen, 101 Ga. App. 706, 115 S.E.2d 258 (1960).

Courts are not obliged to grant a new trial for newly discovered evidence unless the court's are reasonably convinced that on another trial there will probably be a different verdict. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Unless newly discovered evidence is of such character as upon another trial would likely produce a different result, the judge does not err in overruling the motion for new trial. Cannon v. State, 194 Ga. 277, 21 S.E.2d 689 (1942).

When newly discovered evidence offered in support of motion for new trial was of such character as probably would, if credited by jury, produce a different result upon another investigation, the trial judge erred in overruling the motion. McDaniel v. State, 74 Ga. App. 5, 38 S.E.2d 697 (1946).

On hearing extraordinary motion for new trial, if it is not reasonably apparent to judicial mind that new facts would probably produce a different verdict, new trial should not be ordered. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969).

If it is not reasonably apparent to judicial mind that new facts would probably produce different verdict, new trial should not be ordered. Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Unless it is reasonably apparent from the record that alleged newly discovered evidence will likely produce a different verdict upon another trial, a motion for new trial based upon that ground should not be granted. Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980); Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

When it has not been shown that the newly discovered evidence was so material that it would probably produce a different verdict, or that it could not have been discovered during trial by the exercise of reasonable diligence there is no abuse of discretion by the trial court in overruling the defendant's motion for a new trial. Covington v. State, 157 Ga. App. 371, 277 S.E.2d 744 (1981).

Because defense counsel went over the voluntary manslaughter statute with defendant and explained intent to the defendant, the defendant failed to show that counsel was ineffective; because the defendant's plea was freely and voluntarily made, the trial court did not err in denying the defendant's motion for new trial. Howard v. State, 274 Ga. App. 861, 619 S.E.2d 363 (2005).

Standard of review.

- Trial judge's grant of new trial under section will not be disturbed unless it is made to appear that the judge abused the judge's discretion. Exchange Bank v. Cone, 18 Ga. App. 432, 89 S.E. 489 (1916).

Trial judge's ruling on motion under section will not be disturbed absent a manifest abuse of discretion. Aycock v. State, 188 Ga. 550, 4 S.E.2d 221 (1939); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980).

Order of trial judge in refusing to grant new trial on ground of newly discovered evidence will not be disturbed unless it is shown that the judge has abused the judge's discretion. Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Refusal to grant the motion will not be reversed unless the trial judge's discretion is abused. Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Refusal of new trial not disturbed unless it appears new evidence would change result.

- Discretion of trial judge in refusing to grant new trial on ground of newly discovered evidence will not be controlled, unless it plainly appears that evidence alleged to have been newly discovered would probably change result. This rule is peculiarly applicable when alleged newly discovered testimony in criminal case relates to facts which are not vitally material to the issue of defendant's guilt or innocence. Taylor v. State, 13 Ga. App. 689, 79 S.E. 862 (1913).

Ineffective assistance of appellate counsel not shown.

- Defendant failed to meet the defendant's burden in order to show that defendant's counsel rendered ineffective assistance at trial, pursuant to the Strickland standard under U.S. Const., amend. VI, as the failure to request instructions was shown to be a trial strategy, for which no prejudice was shown, and there was no need to object to an instruction which was a correct statement of the law and was supported by the evidence; further, appellate counsel was not shown to be ineffective because no prejudice was shown and certain issues which were not raised in defendant's new trial motion, pursuant to O.C.G.A. § 5-5-23, were procedurally barred from review on appeal. Godfrey v. State, 274 Ga. App. 237, 617 S.E.2d 213 (2005).

Trial court properly denied defendant's motion for a new trial.

- Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on what was alleged to be newly discovered evidence; the appeals court classified the evidence, at best, as newly available, not newly discovered. Kilby v. State, 289 Ga. App. 457, 657 S.E.2d 567 (2008).

Motion properly denied.

- Motion for new trial was properly denied as the trial court did not err in concluding that the defendant failed to carry the defendant's burden of showing ineffective assistance; trial counsel's decision to pursue the coercion defense, O.C.G.A. § 16-3-26, for armed robbery rather than a mistaken identity defense, was clearly a strategic decision based upon the evidence. Lewis v. State, 270 Ga. App. 48, 606 S.E.2d 77 (2004).

Trial court properly denied an injured party's motion for a new trial pursuant to O.C.G.A. § 5-5-23 in a personal injury action; a driver's statements in the answer and pre-trial order were not inconsistent, as both averred that the driver had a green light at the time of the accident, and thus the trial court properly declined to allow cross-examination of the driver as to the pleadings. Lott v. Hatcher, 275 Ga. App. 424, 620 S.E.2d 651 (2005).

Evidence sufficient to support denial of motion.

- Defendant's convictions for robbery, burglary, and false imprisonment, in violation of O.C.G.A. §§ 16-8-40(a),16-7-1(a), and16-5-41(a), respectively, were supported by sufficient evidence because the victim and a codefendant both positively identified the defendant as a participant in a criminal event, wherein three individuals burst into the victim's apartment, robbed the victim at gunpoint, and tied the victim up; the lack of physical evidence did not alter the sufficiency, as the identification testimony from a photographic line-up and at trial was within the trier of fact's credibility determination, and denial of the defendant's new trial motion under O.C.G.A. § 5-5-23 was proper. Tucker v. State, 275 Ga. App. 611, 621 S.E.2d 562 (2005).

Cited in Atlanta Rapid Transit Co. v. Young, 117 Ga. 349, 43 S.E. 861 (1903); Trammell v. Shirley, 38 Ga. App. 710, 145 S.E. 486 (1928); Smith v. State, 170 Ga. 234, 152 S.E. 482 (1930); Booth v. Rickerson, 45 Ga. App. 733, 165 S.E. 893 (1932); Capps v. Toccoa Falls Light & Power Co., 46 Ga. App. 268, 167 S.E. 530 (1933); McDow v. State, 176 Ga. 764, 168 S.E. 869 (1933); Thompson v. Growers' Fin. Corp., 49 Ga. App. 119, 174 S.E. 192 (1934); Gibson v. State, 178 Ga. 707, 174 S.E. 354 (1934); Terry v. State, 49 Ga. App. 343, 175 S.E. 403 (1934); Goodson v. State, 50 Ga. App. 91, 176 S.E. 916 (1934); Booker v. State, 50 Ga. App. 66, 176 S.E. 917 (1934); Jackson Disct. Co. v. Merck, 50 Ga. App. 381, 178 S.E. 208 (1935); Le Counte v. State, 51 Ga. App. 421, 180 S.E. 657 (1935); Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937); Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214 (1941); Mills v. State, 193 Ga. 139, 17 S.E.2d 719 (1941); Parsons v. Georgia Power Co., 67 Ga. App. 517, 21 S.E.2d 257 (1942); Jones v. State, 68 Ga. App. 210, 22 S.E.2d 671 (1942); Landers v. State, 68 Ga. App. 804, 24 S.E.2d 139 (1943); Johnson v. State, 196 Ga. 806, 27 S.E.2d 749 (1943); Buttersworth v. State, 200 Ga. 13, 36 S.E.2d 301 (1945); Brown v. State, 73 Ga. App. 420, 37 S.E.2d 163 (1946); Luce v. Evans, 202 Ga. 48, 41 S.E.2d 878 (1947); Mooney v. Shelfer, 205 Ga. 766, 55 S.E.2d 212 (1949); McCowen v. Aldred, 85 Ga. App. 373, 69 S.E.2d 660 (1952); Randall v. Whitman, 88 Ga. App. 803, 78 S.E.2d 78 (1953); Gibson v. State, 210 Ga. 440, 80 S.E.2d 681 (1954); Fields v. Balkcom, 211 Ga. 797, 89 S.E.2d 189 (1955); Lightfoot v. Applewhite, 212 Ga. 136, 91 S.E.2d 37 (1956); Fortner v. State, 96 Ga. App. 855, 101 S.E.2d 908 (1958); Austin v. State, 121 Ga. App. 244, 173 S.E.2d 452 (1970); Bickford v. Bickford, 228 Ga. 353, 185 S.E.2d 756 (1971); Vinson v. State, 127 Ga. App. 607, 194 S.E.2d 583 (1972); Blair v. State, 230 Ga. 409, 197 S.E.2d 362 (1973); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Downs v. State, 141 Ga. App. 173, 233 S.E.2d 32 (1977); Maddox v. Thomas, 151 Ga. App. 477, 260 S.E.2d 355 (1979); Cartin v. Boles, 155 Ga. App. 248, 270 S.E.2d 799 (1980); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980); Austin v. McNeese, 156 Ga. App. 533, 275 S.E.2d 79 (1980); Transport Ins. Co. v. Ferguson, 156 Ga. App. 715, 275 S.E.2d 354 (1980); Fields v. Fields, 247 Ga. 437, 276 S.E.2d 614 (1981); Cody v. State, 160 Ga. App. 86, 286 S.E.2d 321 (1981); Powell v. State, 160 Ga. App. 210, 286 S.E.2d 513 (1981); Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1982); Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982); Payne v. State, 161 Ga. App. 233, 291 S.E.2d 236 (1982); Collier v. State, 169 Ga. App. 69, 311 S.E.2d 242 (1983); Llewellyn v. State, 252 Ga. 426, 314 S.E.2d 227 (1984); Ansell v. State, 172 Ga. App. 89, 321 S.E.2d 819 (1984); Mason v. State, 177 Ga. App. 184, 338 S.E.2d 706 (1985); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); McIntyre v. State, 207 Ga. App. 129, 427 S.E.2d 99 (1993); Betha v. State, 208 Ga. App. 802, 432 S.E.2d 242 (1993); Gardner v. State, 261 Ga. App. 188, 582 S.E.2d 167 (2003); Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003); Dorsey v. State, 261 Ga. App. 181, 582 S.E.2d 158 (2003); Floor Pro Packaging, Inc. v. AICCO, Inc., 308 Ga. App. 586, 708 S.E.2d 547 (2011).

Strict rules.

- Extraordinary motions for new trials, based solely upon ground of newly discovered evidence, are viewed by courts with even less favor than original motions based on such ground, a stricter rule being applied to the former. Norman v. Goode, 121 Ga. 449, 49 S.E. 268 (1904); Jackson v. State, 50 Ga. App. 243, 177 S.E. 819 (1934).

Extraordinary motions for new trial based on newly discovered evidence are not favored by law. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Extraordinary motion for new trial under section is addressed to sound discretion of trial judge. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Refusal to grant extraordinary motion under section will not be reversed absent abuse of discretion. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Cannot be based on evidence known or discoverable in permissible time.

- Extraordinary motion for new trial cannot be based upon evidence which was known to the movant or which could have been discovered in time by proper diligence. Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Denial of defendant's extraordinary motion for a new trial based on newly discovered evidence was upheld after the defendant failed to show, inter alia, that the allegedly new evidence came to the defendant's knowledge after trial or that the delay in acquiring the evidence was not the result of lack of due diligence. Alexander v. State, 264 Ga. App. 34, 589 S.E.2d 857 (2003).

Denial of defendant's motion for a new trial after the defendant's conviction for burglary and theft by receiving was not error, as defendant's alleged newly-discovered evidence would have been known prior to trial; the defendant knew of a witness' immediate presence during a conversation regarding stolen goods and, therefore, would have known prior to trial that the witness could have testified to the conversation. Fetter v. State, 271 Ga. App. 652, 610 S.E.2d 615 (2005).

Must contain certified copy of evidence adduced upon trial.

- When accused has been convicted, a new trial denied the accused, and that judgment affirmed, in order for extraordinary motion for new trial on ground of newly discovered evidence to be a valid motion, it must appear that newly discovered evidence is not merely cumulative or impeaching, and that newly discovered evidence would likely produce a different result. As none of these requirements can be determined without an examination of evidence adduced upon original trial of case, an extraordinary motion for new trial that does not contain a certified copy of evidence adduced upon original trial is not a good motion and can be denied upon this ground alone. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956).

Court may allow oral or parol testimony.

- On hearing of extraordinary motion for new trial, it is not error for court to allow, over objection, oral or parol testimony. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Judge may hear affidavits, though witnesses are present unless objection is made.

- In hearing on extraordinary motion for new trial, when witnesses are present, and do not object, the presiding judge has discretion as to whether the judge will hear affidavits or oral testimony. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Claim of innocence in habeas petition was not a constitutional claim.

- Petitioner, a death row inmate, argued in the petitioner's federal habeas petition as a separate claim for relief that the petitioner was actually innocent, but that claim failed because actual innocence was not itself a constitutional claim, and was instead a gateway through which a habeas petitioner had to pass to have an otherwise barred constitutional claim considered on the merits; further, the claim was not properly before the federal court, as the petitioner could pursue a claim of actual innocence in state court by filing an extraordinary motion for new trial under O.C.G.A. §§ 5-5-23,5-5-40, and5-5-41. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).

On hearing of extraordinary motion for new trial, pertinent parts of trial record are admissible.

- It is not error on hearing of extraordinary motion for new trial to admit, over objection, record of evidence taken at main trial bearing upon question to be decided. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Filing of extraordinary motion not affected by notice of appeal.

- While it is elementary that after notice of appeal has been filed to judgment of trial court, judge no longer has jurisdiction to reconsider and change it, this has no bearing on extraordinary motions filed under this section. Brooks v. Williams, 127 Ga. App. 311, 193 S.E.2d 231 (1972).

Trial court did not abuse discretion in granting extraordinary motion for new trial.

- Trial court did not abuse its discretion in granting plaintiffs' extraordinary motion for new trial based on an auto company's misleading discovery responses with regard to liability insurance because they acted with due diligence to raise their claim that the jury should have been qualified as to the auto company's insurers and the failure to do so raised an unrebutted presumption that they were materially harmed. Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

When movant knew or should have known of evidence, motion is without merit.

- Ground of the motion for new trial based on alleged newly discovered evidence is without merit when it appears from the ground that such evidence must have been, or should have been known to the defendant before trial. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981).

No new trial as to evidence that could have been secured earlier through ordinary diligence.

- Motion for new trial on this ground should not be granted unless it appears that applicant's ignorance of alleged newly discovered evidence at time of trial was not the result of negligence. Williams v. State, 67 Ga. 260 (1881).

New trials based on newly discovered evidence should not be granted unless it appears that testimony alleged to be newly discovered could not have been secured at trial by exercise of ordinary diligence. Copelan v. State, 7 Ga. App. 690, 67 S.E. 833 (1910).

When evidence could have been discovered before trial by exercise of diligence, trial judge does not abuse the judge's discretion in refusing a new trial. Cadwalader v. Fendig, 137 Ga. 140, 72 S.E. 903 (1911); Rothschild & Co. v. Arenson & Co., 22 Ga. App. 337, 96 S.E. 14 (1918); Sovereign Camp of Woodmen of the World v. Winn, 23 Ga. App. 760, 99 S.E. 319 (1919).

Judge is trier of whether or not sufficient diligence has been shown. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Determination of whether diligence exercised was ordinary.

- Whether diligence used was ordinary or less than ordinary must be determined in each case by comparing conduct under consideration with that of ordinary man under similar circumstances. Orr v. State, 5 Ga. App. 76, 62 S.E. 676 (1908).

It is not incumbent upon state to show lack of diligence. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Mere statement that evidence could not have been discovered through ordinary diligence is insufficient.

- Mere general statements by defendant and counsel that they did not know of evidence and could not have discovered the evidence by the exercise of ordinary diligence are insufficient to sustain a motion for new trial on the ground of newly discovered evidence. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Mere assertion that evidence could not have been discovered by ordinary diligence is insufficient. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Mere allegation that the evidence could not have been discovered by ordinary diligence is insufficient to show that the evidence could not have been discovered prior to trial. Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Diligence before trial will not be inferred from diligence after conviction. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Ordinary diligence requires pretrial inspection of place where accident occurred. Cadwalader v. Fendig, 137 Ga. 140, 72 S.E. 903 (1911); Realty Bond & Mtg. Co. v. Harley, 19 Ga. App. 186, 91 S.E. 254 (1917).

Avoidance of juror disqualification by ordinary diligence.

- When a bank deposed a customer, who had filed a slip and fall action against the bank, four years before trial and when asked whether the customer had any relatives who might become jurors, the customer indicated that a spouse had some but the customer did not know their names, it was held that the bank was on notice that further investigation was required in order to avoid the issue of juror disqualification pursuant to O.C.G.A. § 15-12-135(a); accordingly, the denial of the bank's motion for a new trial pursuant to O.C.G.A. § 5-5-23, after the verdict was entered in favor of the customer, was properly denied because the bank could have avoided the issue of juror disqualification by use of ordinary diligence. Furthermore, the damages awarded in favor of the customer were not so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors. Patterson Bank v. Gunter, 263 Ga. App. 424, 588 S.E.2d 270 (2003).

Evidence itself, rather than witnesses, must be newly discovered.

- Alleged newly discovered evidence is no cause for new trial, unless it shall appear that evidence itself is newly discovered, not merely that certain named witnesses by whom facts can be proved were unknown until after the trial. Watkins v. State, 18 Ga. App. 60, 88 S.E. 1000 (1916); Bass v. State, 154 Ga. 112, 113 S.E. 524 (1922); Manchester v. State, 175 Ga. 906, 166 S.E. 651 (1932).

Newly discovered evidence must be material to issue involved in trial. Oppenheim v. State, 12 Ga. App. 480, 77 S.E. 652 (1913).

Evidence should relate to new material facts, likely to produce different result on second trial.

- It is essential that evidence should be material, relating to new and material facts, and such as will be likely to produce different result on second trial. Goldberg v. State, 16 Ga. App. 691, 85 S.E. 972 (1915).

Defendant's motion for a new trial based on newly discovered evidence was properly denied since the defendant claimed that one of the other people riding in a car with the defendant asked a testifying witness for bullets for a gun, and thereafter, defendant was convicted for various crimes resulting from the shooting, wounding, and deaths of three individuals; this new information was not material and not likely to produce a different result. Ingram v. State, 276 Ga. 223, 576 S.E.2d 855 (2003).

Must relate to new material facts discovered after verdict.

- Newly discovered evidence must also be material in relating to new and material facts discovered by applicant after rendition of verdict against the applicant. Alexander v. Allen, 101 Ga. App. 706, 115 S.E.2d 258 (1960).

Evidence which must have been known before trial ended.

- Motion for new trial on this ground should not be granted unless it appears that evidence was discovered by the applicant after a verdict against the applicant. Collins v. State, 21 Ga. App. 128, 94 S.E. 77 (1917).

Evidence which, in the nature of things, must have been known to the accused before the trial ended cannot after verdict be treated as newly discovered. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941).

Trial court did not abuse the court's discretion by denying the defendant's motion for new trial based upon newly discovered evidence, as the defendant had possession of the claimed new evidence, surveillance photos taken at the scene of an armed robbery, at trial, and counsel used these photos in presenting a defense; further, testimony from a newly discovered witness, whom the defendant claimed would extrapolate meaning from the evidence, was not newly discovered evidence for purposes of granting a new trial. Claritt v. State, 280 Ga. App. 384, 634 S.E.2d 81 (2006).

Evidence which could have been discovered and presented at trial.

- If evidence subsequently relied upon is such that the evidence could have been discovered with ordinary diligence and presented at trial, a motion for new trial should be denied. Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326 (1970).

Trial court did not err by denying an insurance company's motion for a new trial to consider newly-discovered evidence, pursuant to O.C.G.A. § 5-5-23, because the bankruptcy records which the insurance company wanted the court to consider were available as public records and could have been obtained and introduced during the trial. VFH Captive Ins. Co. v. Cielinski, 260 Ga. App. 807, 581 S.E.2d 335 (2003).

In an action by a builder to recover for breach of contract, the buyers were not entitled to a new trial since the buyers failed to point to authority stating that the perjured testimony was grounds for a new trial in a civil case and failed to show that late discovery was not due to lack of diligence. Hopper v. M & B Builders, Inc., 261 Ga. App. 702, 583 S.E.2d 533 (2003).

Claim that there was newly discovered evidence lacked merit because the evidence was available before trial; the evidence that the defendant's son was allegedly molested by the victim of the defendant's offenses was known to the defendant prior to trial. Lester v. State, 278 Ga. App. 247, 628 S.E.2d 674 (2006).

Affidavit submitted by litigant's counsel purporting to show newly discovered evidence is insufficient to serve as grounds for a new trial. Among other requirements, the affidavit of the witness should be procured or the absence accounted for. Head v. State, 160 Ga. App. 4, 285 S.E.2d 735 (1981).

When appellant did not obtain the witness's affidavit as to newly discovered evidence, nor account for the affidavit's absence, there was no concrete indication as to what the newly discovered evidence would be, if a new trial were had. Thus, the trial court did not err in overruling the motion for new trial. Kuchenmeister v. State, 199 Ga. App. 64, 403 S.E.2d 847, cert. denied, 199 Ga. App. 906, 403 S.E.2d 847 (1991).

No abuse of discretion found.

- Because the "newly discovered evidence" upon which the defendant relied merely tended to impeach the codefendant's trial testimony, the trial court did not abuse the court's discretion in denying the defendant's motion for a new trial; there was no evidence that the codefendant who recanted had been convicted of perjury. Anderson v. State, 276 Ga. App. 216, 622 S.E.2d 898 (2005).

Ultimate criterion is probability of different result.

- Although newly discovered evidence may be somewhat cumulative of testimony previously introduced, and impeaching in the evidence's character, the ultimate criterion is the probability of a different result. Paden v. State, 17 Ga. App. 112, 86 S.E. 287 (1915); McDaniel v. State, 74 Ga. App. 5, 38 S.E.2d 697 (1946).

When cumulative or impeaching evidence might justify new trial.

- Cumulative evidence might justify a new trial, if it has effect of rendering clear and positive that which was before equivocal and uncertain. Dougherty v. State, 7 Ga. App. 91, 66 S.E. 276 (1909).

Evidence of new, independent fact, indicating accused's innocence, suffices.

- Evidence of new and independent fact, indicating innocence of accused, even though impeaching and cumulative in a sense, if other requirements have been fulfilled, requires new trial. Mosley v. State, 17 Ga. App. 740, 88 S.E. 415 (1916).

What is cumulative evidence.

- Cumulative evidence is evidence tending to establish a fact in relation to which there was evidence upon trial. Walker v. State, 126 Ga. 588, 55 S.E. 483 (1906); Lawhorn v. State, 155 Ga. 373, 116 S.E. 822 (1923); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Evidence is cumulative when the evidence goes to the fact principally controverted upon trial, and respecting which the party asking for a new trial produced testimony. Greenway v. Sloan, 211 Ga. 775, 88 S.E.2d 366 (1955); Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Evidence which covers same point is cumulative. McKinnon v. Henderson, 145 Ga. 373, 89 S.E. 415 (1916).

To be noncumulative, evidence must concern new issue or be of higher grade.

- It is only when newly discovered evidence either relates to particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on same material point, that it will ordinarily be taken outside definition of cumulative evidence, and afford a basis for a new trial. Johnson v. State, 196 Ga. 806, 27 S.E.2d 749 (1943).

That newly discovered evidence incidentally strengthens defense used in trial does not make the evidence cumulative, when the evidence is comprised of new, distinct, and material facts about which no witness testified at trial, thereby supplying a link or gap missing in previous testimony. Bell v. State, 227 Ga. 800, 183 S.E.2d 357 (1971).

Evidence not rendered noncumulative merely because furnished by stranger to litigation.

- Evidence is not rendered noncumulative so as to afford a basis for demanding new trial on the ground of newly discovered evidence, merely because it is to be furnished by a stranger to the litigation upon a matter otherwise covered only by the testimony of the parties. Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

New evidence which is immaterial, incompetent, or merely impeaching is not ground for new trial. Ponder v. Walker, 107 Ga. 753, 33 S.E. 690 (1899); Fort v. State, 3 Ga. App. 448, 60 S.E. 282 (1908); Graham v. Owens, 18 Ga. App. 284, 89 S.E. 304 (1916); Jenkins v. Jenkins, 150 Ga. 77, 102 S.E. 425 (1920); Hill v. Overstreet, 28 Ga. App. 786, 113 S.E. 41 (1922); Fairburn & A. Ry. & Elec. Co. v. Hale, 32 Ga. App. 412, 123 S.E. 724 (1924).

Newly discovered evidence which is no more than impeaching in character, falls under inhibition of section, although in every other respect it meets requirements of this section dealing with circumstances under which new trial may be granted on ground of newly discovered evidence. Stembridge v. State, 84 Ga. App. 413, 65 S.E.2d 819 (1951), cert. dismissed, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952).

Evidence of perjury by witness insufficient.

- Affidavit indicating that the defendant's cousin allegedly committed perjury on the stand at the defendant's trial was not newly discovered evidence under O.C.G.A. § 5-5-23, and would have served only to impeach the cousin's trial testimony; therefore, such evidence was not a basis for a new trial. Morrison v. State, 256 Ga. App. 23, 567 S.E.2d 360 (2002).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial as the hearsay evidence of alleged post-trial statements that the victim and the victim's mother made to the relatives of the defendant, who had been convicted of two counts of child molestation regarding the victim, that the victim and the mother had admitted that they lied at trial about the molestation, only had the effect of impeaching the trial testimony of prosecution witnesses and a new trial would not be granted under such circumstances. Dowd v. State, 261 Ga. App. 306, 582 S.E.2d 235 (2003).

Failure by the defendant to comply with former Ga. Ct. App. R. 27(c)(2) because there was no citation of authority or reasoned argument to support an asserted error constituted an abandonment of a claim on appeal that the trial court erred in failing to order a lie detector test for the victim of the defendant's crime; however, even if there was no abandonment of the assertion of error, a new trial would not have been granted pursuant to O.C.G.A. § 5-5-23 because the results of any polygraph test given to the victim would not have done more than impeach the victim's credibility and there was no showing by the defendant that the evidence would not have merely been cumulative. Hammond v. State, 282 Ga. App. 478, 638 S.E.2d 893 (2006).

Extrajudicial admissions of party are not merely impeaching, and when such admissions show a new and distinct right to recover, or a different theory of recovery, from that relied upon at trial, or when similar extrajudicial admissions of the same party were not proved upon the trial of the case, such evidence may be grounds for a new trial. Wiggins v. Lord, 87 Ga. App. 486, 74 S.E.2d 389 (1953).

Trial court properly denied the second defendant's motion for new trial on the basis of newly discovered evidence that a codefendant lied under oath to obtain a favorable deal because the codefendant was not convicted of perjury, the second defendant failed to establish that the codefendant's testimony was the purest fabrication, and there was other evidence that supported second defendant's guilt. Lopez v. State, 267 Ga. App. 532, 601 S.E.2d 116 (2004).

Post-trial admissions or declarations of successful party as ground for new trial.

- New trial may be granted for newly discovered evidence of material admissions of successful party, which is not cumulative to other evidence offered at trial. Evidence of admissions made by successful party after trial, or subsequent declarations inconsistent with that party's testimony on trial, may be ground for setting aside verdict, at least in interest of justice. Perry v. Hammock, 75 Ga. App. 171, 42 S.E.2d 651 (1947).

Evidence that conviction was procured by perjured testimony, with prosecutor's knowledge.

- When it is shown and not denied that conviction was procured by perjured testimony, which testimony state's prosecuting attorney knew to be perjured at time the testimony was introduced, due process as guaranteed by the Fourteenth Amendment is denied, and such testimony is not merely impeaching in character but has probative force. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).

Section does not preclude evidence showing witness's error in former certificate as to transcript of record.

- Section does not prevent introduction of evidence which goes to show that error was made by witness in the witness's former certificate as to transcript of record. Such evidence does not impeach former testimony or transcript, although the evidence may be contradictory. It is explanatory, as showing way and manner in which such alleged error may have occurred. Sheffield v. Hawkins, 47 Ga. App. 162, 170 S.E. 100 (1933).

Discovered attempt of prosecutor to bribe individual to swear falsely.

- It is no cause for new trial that accused has discovered that certain person will swear that prosecutor sought to bribe the person to swear falsely. Duggan v. State, 124 Ga. 438, 52 S.E. 748 (1905).

Effect of showing that efforts were made to get certain persons to testify falsely against the defendant, which persons did not testify at all, could only be material as a circumstance to show that same effort was made to get those who did testify against the defendant to likewise swear falsely. It therefore follows that such newly discovered evidence is merely impeaching in character and is therefore not a good ground for new trial. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948).

Newly discovered evidence tending to impeach state's witness. Jenkins v. State, 19 Ga. App. 626, 91 S.E. 944 (1917).

Officers' opinion testimony not evidence.

- Defendant was not entitled to a new trial based upon the prosecution having failed to disclose evidence favorable to the defense because two police officers' opinions as to the defendant's guilt were not evidence and would not have been admissible at trial. Smith v. State, 309 Ga. App. 241, 709 S.E.2d 823 (2011), cert. denied, No. S11C1266, 2011 Ga. LEXIS 954 (Ga. 2011).

Extrajudicial declarations by witness not ground for new trial.

- That witness, after trial, made certain declarations at variance with the witness's sworn testimony, will not work new trial. Lasseter v. Simpson, 78 Ga. 61, 3 S.E. 243 (1886); Smarr v. Kerlin, 21 Ga. App. 813, 95 S.E. 306 (1918); Adams v. Ginn, 27 Ga. App. 222, 107 S.E. 608 (1921).

Declarations of witness at variance with testimony.

- Declarations of witness at variance with what the witness testified to upon trial do not constitute reasons for grant of new trial. Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951).

Individual's statement to another that the individual, rather than accused, perpetrated offense.

- Declarations to third persons against declarant's penal interest, to effect that declarant, and not accused, was actual perpetrator of offense, are not admissible in favor of an accused at the accused's trial, or to procure a new trial on the basis of newly discovered evidence. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

No new trial when movant's counsel knew of existence of certain papers before trial. Hearn v. Roberts, 27 Ga. App. 411, 108 S.E. 622, cert. denied, 27 Ga. App. 835 (1921).

Recent photo of another suspect not ground for new trial when other recent photo was available.

- Defendant's motion for new trial on basis of newly discovered, recent photo of another suspect and of district attorney's failure to bring such photo to attention of defendant or trial court was properly denied when the defendant had access to a different photo, which was less than two years old, and used the photo to examine the witness but did not seek to examine the state's eyewitnesses by use of the photo; and when the defendant failed to tender post trial evidence that any of the state's eyewitnesses would identify other suspect from newly discovered photo, leading trial court to conclude that photo was not so material that it would probably produce a different verdict. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Improved condition of victim not new evidence.

- Although the defendant was convicted under O.C.G.A. § 40-6-394, the defendant was not entitled to a new trial under O.C.G.A. § 5-5-23, as the newly-discovered evidence that the victim was seen walking would not have produced a different result; evidence of this was produced at trial, and permanent uselessness of a limb was not required for a conviction under O.C.G.A. § 40-6-394. Adams v. State, 259 Ga. App. 570, 578 S.E.2d 207 (2003).

Evidence of parent's DUI arrests material in custody modification proceeding.

- Trial court had authority to add the alcohol-related provisions to the custody order because the mother filed the motion for new trial 21 days after entry of the modification order, which was an ordinary motion for new trial, and the new evidence of the father's drunk driving arrests was material and showed a pattern of behavior justifying the condition. Lester v. Boles, 330 Ga. App. 711, 769 S.E.2d 133 (2016).

Evidence offered to establish alibi, contradicted at trial.

- When evidence presented at hearing on motion to reopen case involving operation of automobile during period driver's license was suspended attempted only to establish alibi and there was positive evidence to the contrary presented at the original hearing, it was not newly discovered evidence as contemplated. Whitley v. State, 79 Ga. App. 600, 54 S.E.2d 486 (1949).

Evidence which would do no more than make case of oath against oath.

- When alleged newly discovered evidence would do no more than make case of oath against oath i.e., new witness swearing prosecutrix was lying and vice versa, on issues already covered at trial, presumption in favor of verdict is sufficient to turn scale or at least to sustain exercise of discretion by presiding judge upholding verdict. Jackson v. State, 56 Ga. App. 250, 192 S.E. 454 (1937).

Existing rulings of Interstate Commerce Commission court cannot be set up as newly discovered evidence. Macon D. & S.R.R. v. Robinson, 19 Ga. App. 370, 91 S.E. 492 (1917).

No new trial as to facts known to summoned witness who did not testify.

- When witnesses summoned by the defendant are present at trial but are not examined, a new trial will not be granted on the ground that since the verdict the defendant has for first time learned that the witnesses could have testified to facts material to the defendant's defense. Hall v. State, 117 Ga. 263, 43 S.E. 718 (1903); Rounsaville v. State, 163 Ga. 391, 136 S.E. 276 (1926).

Fact that trial witness would have testified differently had the witness not been ill is insufficient.

- It is no ground for new trial that witness who testified upon trial would have testified to other facts in contradiction of other testimony, had the witness not, at time of rendition of the witness's testimony, been ill and under influence of drugs. Duren v. Clark, 47 Ga. App. 429, 170 S.E. 693 (1933).

Forgetfulness by party of material fact on trial. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941).

Inadequate pre-trial investigation merits new trial.

- Defendant's motion for suppression of identification evidence in defendant's trial for armed robbery, in violation of O.C.G.A. § 16-8-41, was properly denied because the photographic line-up presented to the victim was not impermissibly suggestive, as four of the six men were within defendant's age range and had the same color and characteristics about their faces. However, it was error to deny the defendant's motion for a new trial pursuant to O.C.G.A. § 5-5-23, since defense counsel rendered ineffective assistance in that counsel failed to conduct a proper pre-trial investigation based on the defendant's claim of an alibi for which the defendant provided names of witnesses, as there was a reasonable probability that the outcome might have changed if the proper investigation was conducted. Tenorio v. State, 261 Ga. App. 609, 583 S.E.2d 269 (2003).

Testimony constituting expert opinions did not present "new and material facts" and such opinion evidence failed to constitute newly discovered evidence within O.C.G.A. § 5-5-23. Wesleyan College v. Weber, 238 Ga. App. 90, 517 S.E.2d 813 (1999).

New and material evidence found in civil case.

- Discovery of the fact that the former wife had remarried the day before a trial on issues of alimony, child support, and property disposition is new and material evidence warranting a new trial. Hegedus v. Hegedus, 255 Ga. 44, 335 S.E.2d 284 (1985).

Denial of a motion for new trial not abuse of discretion. Pendergrass v. State, 168 Ga. App. 190, 308 S.E.2d 585 (1983).

When the plaintiff in a malpractice action moved for a new trial claiming the discovery of new evidence in that a 1981 x-ray defendant introduced at trial as depicting the plaintiff's shoulder was, in fact, an x-ray of someone else's shoulder because a prosthesis was not depicted therein, but the record reveals that the plaintiff did not exercise due diligence in determining that fact before the end of trial, having fallen short of meeting the requirements for the grant of a new trial, plaintiff had no basis for asserting that the trial court had abused the court's discretion by denying the plaintiff's motion. Boatwright v. Eddings, 180 Ga. App. 742, 350 S.E.2d 291 (1986).

Sufficient evidence supported the defendant's conviction for malice murder, and there was no merit in the defendant's ineffective assistance of counsel claim; therefore, the defendant's motion for a new trial was properly denied. Jackson v. State, 277 Ga. 592, 592 S.E.2d 834 (2004).

Trial court properly denied the defendant's motion for a new trial based on newly discovered evidence challenging the victim's testimony that the victim knew the defendant but had never "partied" or smoked marijuana with the defendant as: (1) the defendant knew of the dispute as to how well the defendant knew the victim; (2) the defendant did not show any reason why the defendant could not in due diligence have obtained the affidavits at some earlier time; (3) the only issues raised in the affidavits were how well the defendant and the victim were acquainted and how they spent their time; and (4) the proffered testimony only went to impeach the witness. Joyner v. State, 267 Ga. App. 309, 599 S.E.2d 286 (2004).

Defendant's acts, including telephoning a known drug dealer about purchasing cocaine, and driving to an agreed location to make the transaction, sufficiently constituted a substantial step to convict the defendant of attempting to possess cocaine; thus, denial of defendant's motion for a new trial was not an abuse of discretion. Massey v. State, 267 Ga. App. 482, 600 S.E.2d 437 (2004).

In a prosecution for serial rape, the trial court did not abuse the court's discretion by denying a motion for a new trial after the defendant failed to establish the existence or the relevance of new evidence of the nonoccurrence of a prior incident not originally in the record. Jefferson v. State, 206 Ga. App. 544, 425 S.E.2d 915 (1992).

When the copies were not submitted until after entry of a directed verdict, copies of a prior declaratory judgment introduced by parties to that proceeding did not constitute newly discovered evidence for purposes of a motion for a new trial. McMillian v. Rogers, 223 Ga. App. 699, 479 S.E.2d 7 (1996).

Not only did counsel's testimony support the trial court's ruling denying the defendant a new trial, but the defendant did not produce evidence as to what the defendant should have known at the time of the defendant's decision not to testify that the defendant did not know, nor how that information would have altered the defendant's decision; in any event, the defendant failed to show that there was any likelihood that the outcome of the trial would have been different. Sims v. State, 278 Ga. 587, 604 S.E.2d 799 (2004).

Trial court did not err in denying a husband's motion for new trial as the wife presented sufficient evidence for which an equitable division of the value of two properties at issue could have been determined at the time the property's value began to include an element of marital property. Maddox v. Maddox, 278 Ga. 606, 604 S.E.2d 784 (2004).

Defendant was not entitled to a new trial based on newly discovered evidence that the defendant suffered from pigmentary dispersion syndrome because, even with vision impairment the defendant qualified for a Georgia driver's license; further, the argument at trial was that the defendant was not looking at the road and was sleep-impaired at the time of the accident, and there was evidence that the defendant had been drinking and swerved back and forth across the road making it unlikely that evidence of visual impairment would produce a different outcome. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

There was no manifest abuse of discretion in a trial court's denial of defendant's new trial motion, pursuant to O.C.G.A. § 5-5-23, with respect to the claim that one juror was not impartial because the juror had failed to answer a juror question regarding the juror's relationship to anyone who was convicted of, or a victim of, a child molestation crime, for which defendant was on trial, and it later was discovered that the juror's nephew had been convicted of such a crime six years earlier, as defendant never sought to exclude the juror during the trial, the juror indicated that the juror did not consider the nephew a close relative, and there was no bias or lack of impartiality shown. Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005).

Upon convictions of possessing cocaine with intent to distribute and obstructing a law enforcement officer, the trial court properly denied the defendant's motion for a new trial, as: (1) a challenged juror affirmed the guilty verdict; (2) details about a government witness's plea deal would not have changed the trial outcome; and (3) lab results confirming the purity of the contraband seized was sufficient to show that the substance defendant possessed was cocaine. Tate v. State, 278 Ga. App. 324, 628 S.E.2d 730 (2006).

Defendant's aggravated assault with a deadly weapon conviction was upheld, and an amended motion for a new trial was properly denied, as the defendant was not entitled to a jury instruction on a claimed defense of "mere presence" as such was not a recognized defense, and the charge given to the jury covered all legal principles relevant to the determination of guilt; any confusion was cleared up by the court's further instruction that in order for the jury to convict the defendant of aggravated assault under a party to a crime theory, it would have to find that the defendant directly committed or intentionally helped in the commission of aggravated assault with a deadly weapon. Kelley v. State, 279 Ga. App. 187, 630 S.E.2d 783 (2006).

Trial court did not abuse the court's discretion in denying the defendant's extraordinary motion for new trial without a hearing as: (1) the alleged newly-discovered evidence was not so material that it would likely result in a different verdict; (2) the affidavits presented lacked the type of materiality required to support a new trial as they did not show the witnesses's trial testimony to have been the purest fabrication; (3) the defendant failed to act diligently in presenting the affidavits alleged to have supported the motion; (4) the trial court favored the original testimony, and as such, could not disregard the jury's verdict; and (5) the defendant failed to present the facts necessary to warrant a hearing on the motion. Davis v. State, 283 Ga. 438, 660 S.E.2d 354 (2008), cert.denied, mot. granted, 129 S. Ct. 397, 172 L. Ed. 2d 323 (2008).

Trial court did not abuse the court's discretion in denying a temporary staffing agency's motion for a new trial based on the failure of a widow and a hospital to spontaneously disclose their litigation agreement because there was nothing in the record to show that the agency's ignorance of the litigation agreement rendered the trial fundamentally unfair; because the agency's contractual obligation to indemnify the hospital for any damages the hospital had to pay on account of a nurse's negligence, the hospital had an obvious incentive from the outset to try to show that the widow's damages were entirely the nurse's fault, rather than solely or partly the fault of the hospital's own employee. Med. Staffing Network, Inc. v. Connors, 313 Ga. App. 645, 722 S.E.2d 370 (2012), cert. denied, No. S12C0940, 2012 Ga. LEXIS 533 (Ga. 2012).

Trial court did not err in denying the defendant's extraordinary motion for a new trial under O.C.G.A. § 5-5-41 because the codefendant's testimony at the hearing probably would not have produced a different result in the guilt/innocence phase if the testimony had been presented at the defendant's trial; the defendant did not demonstrate that the defendant took diligent steps to ascertain what testimony the codefendant could have been willing to give during the more than 17 years since the codefendant's trial. Drane v. State, 291 Ga. 298, 728 S.E.2d 679 (2012), cert. denied, U.S. , 133 S. Ct. 663, 184 L. Ed. 2d 472 (2012).

Trial court did not abuse it's discretion by denying a mother's motion for a new trial with regard to an order changing custody of the parties' one minor child to the father because the mother failed to produce newly discovered evidence, repeatedly interfered with the father's visitation, and the record established that the mother obtained a modification in another county under false pretenses. Thus, the mother's credibility had been completely impeached. Fifadara v. Goyal, 318 Ga. App. 196, 733 S.E.2d 478 (2012).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on newly discovered evidence as although the state discovered, following the convictions for attempted child molestation, that the Internet posting presented to the jury was not the posting to which the defendant responded, the court determined that the defendant had knowledge of the correct posting prior to trial and that, even if not, the correct posting was not so material as to produce a different result. Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013).

Trial court did not abuse the court's discretion by denying a mother's motion for a new trial based on newly discovered evidence with regard to a custody modification following the mother voluntarily giving up custody because there was no affidavit as to the mother's mental condition attached to the motion, and the fact that the father could be deployed for an extensive period was clearly contemplated in the court's final order and incorporated parenting plan. Carr-MacArthur v. Carr, 296 Ga. 30, 764 S.E.2d 840 (2014).

Evidence defendant cited not newly discovered evidence for new trial.

- Defendant presented nothing that would serve as a basis for providing relief based on a theory of newly discovered evidence because the alleged evidence the defendant cited was not "newly discovered evidence" that would justify the grant of a new trial but merely a new expert asserting an alternative theory about the case based on the same DNA evidence that had always been available to the defendant for review. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580 (2012).

Authentication of evidence.

- Trial court did not err in denying the defendant's motion for a new trial, pursuant to O.C.G.A. § 5-5-23, since defense counsel's actions constituted trial strategy, were not shown to be ineffective, nor was there any showing that defense counsel's conduct caused the defendant any harm, which was a necessary element of showing ineffectiveness; the motion was also denied with respect to the defendant's claim that the defendant had been coerced into helping commit the crimes as a letter purportedly written by a codefendant which corroborated the coercion defense was not authenticated, despite a request by the state for authentication, and there was no other evidence to support the defendant's claim. Menefield v. State, 264 Ga. App. 171, 590 S.E.2d 180 (2003).

Denial of motion proper.

- Under O.C.G.A. § 5-5-23, denial of a motion for new trial was proper when the evidence was consistent with the defendant's pre-trial statement that was introduced at trial. Mack v. State, 263 Ga. App. 186, 587 S.E.2d 132 (2003).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on a newly discovered confession from the victim, which had been lost before trial; the victim testified that the confession had been signed under duress while the victim was chained and hanging by the victim's feet, and it was improbable that the confession would have produced a different verdict as, pretermitting whether the victim stole from the defendant, the defendant was not justified in binding the victim, hanging the victim from the victim's feet, and striking the victim. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233 (2003).

Corporate defendant, in a negligence and product liability action, was not entitled to a new trial or judgment notwithstanding the verdict because the jury was properly charged that each individual tortfeasor's conduct did not have to constitute a substantial contributing factor in the plaintiff's injury in order to be considered a proximate cause thereof. John Crane, Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004).

Defendant's claim that a trial court improperly denied a motion for new trial and for extraordinary new trial, based on Brady violations by the state in failing to apprise defendant that a lab technician who had run tests on defendant's blood for the presence of alcohol had switched other test samples on two prior occasions, lacked merit; even if most of the elements of a Brady violation were shown, defendant was not deprived of a fair trial because there was no reasonable possibility that the outcome of the trial would have been different because blood taken by hospital personnel also indicated that alcohol was present. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005).

Defendant's aggravated stalking conviction was upheld on appeal, and a new trial was properly denied, as sufficient evidence of the defendant's contact with the victim, in violation of a protective order, and acts of harassment and intimidation supported the conviction; moreover, the failure to object to the state's of similar transaction evidence waived any consideration of the evidence on appeal. Kennedy v. State, 279 Ga. App. 415, 631 S.E.2d 462 (2006).

Trial court properly denied a defendant's motion for a new trial based on newly discovered evidence with regard to the defendant's conviction for the murder of the defendant's mother as the purported newly discovered evidence that another man with whom the defendant had used cocaine with on the day of the murder killed the defendant's mother after learning that the mother had a large sum of cash in the home in preparation for a trip, was part of the defendant's defense, and was vigorously advanced at trial; the reviewing court found no error after concluding that the newly discovered evidence would not have reasonably produced a different result. Hester v. State, 282 Ga. 239, 647 S.E.2d 60 (2007).

Trial court properly denied defendants' motions to suppress and for new trial with regard to the defendants' convictions for drug possession and trafficking based on obtaining allegedly new evidence that a stopping officer failed to run a computer check of one defendant's driver's license, as that officer had indicated, because there was no showing that defendants exercised due diligence in obtaining the additional evidence. In fact, the reason defense counsel provided for not obtaining the evidence sooner was a failure to believe that the computer check of the license was going to be a key issue. Woodard v. State, 289 Ga. App. 643, 658 S.E.2d 129 (2008), cert. denied, No. S08C1061, 2008 Ga. LEXIS 475 (Ga. 2008).

Trial court did not err in denying the defendant's motion for new trial based on newly discovered evidence where bystander's existence was known by defense prior to trial; moreover, as the bystander's claim that defendant had no gun was contradicted by three bystanders and a victim, it did not appear that evidence would have produced a different verdict. Banks v. State, 290 Ga. App. 887, 660 S.E.2d 873 (2008).

Trial court did not err in denying the defendant's motion for new trial based on newly discovered evidence because the defendant failed to establish that the new evidence attacked the creditability of a witness; credibility is attacked by showing that the pending charges and their dismissal reveal a possible bias, prejudice, or ulterior motive on behalf of the witness to give untruthful or shaded testimony in an effort to please the state and not merely to testify in accordance with the state's theory of the case. Delgiudice v. State, 308 Ga. App. 397, 707 S.E.2d 603 (2011).

Decision denying the defendant's motion for a new trial was proper, in light of the strength of the evidence that the defendant committed the charged offenses, including fingerprint evidence; it could not be concluded that new DNA evidence excluding the defendant as the donor of a semen sample recovered from a victim was so material that the DNA evidence warranted a new trial. Wright v. State, 310 Ga. App. 80, 712 S.E.2d 105 (2011).

Trial court did not err in denying the defendant's extraordinary motion for a new trial as the defendant could have moved to conduct DNA testing prior to trial and would have discovered that DNA on the gloves did not match the defendant, but rather the codefendant, and the defendant was thus unable to show that the delay in obtaining evidence was not caused by a lack of due diligence as required in an extraordinary motion for new trial. Bharadia v. State, 326 Ga. App. 827, 755 S.E.2d 273 (2014), aff'd, 297 Ga. 567, 774 S.E.2d 90 (Ga. 2015).

Judge shall determine credibility of conflicting facts and contradictory witnesses.

- Upon hearing of motion for new trial, based upon newly discovered evidence, when affidavits are introduced supporting and disputing ground of motion, the trial judge is trier of facts, and it is the judge's province to determine credibility of conflicting facts and contradictory witnesses. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Court must consider alleged newly discovered evidence in comparison with evidence adduced at trial.

- Under motion for new trial based upon newly discovered evidence, trial court and appellate court are necessarily required to consider alleged newly discovered evidence in light of and in comparison with evidence adduced at trial, and on which conviction is based, in order that court may determine whether alleged newly discovered evidence is merely cumulative or impeaching. Accordingly, injury is done to the defendant in appeal to allow introduction of evidence adduced at trial. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Fact that evidence authorized verdict does not preclude different result on new trial.

- Fact that verdict was authorized by evidence adduced at trial in no way precludes probability of different verdict on another trial with newly discovered evidence, when evidence merely authorized, but did not demand, verdict, and such verdict was before vital, newly discovered evidence supplying missing link was before jury. Bell v. State, 227 Ga. 800, 183 S.E.2d 357 (1971).

Appellate court will not control trial judge's discretion regarding credibility of witnesses.

- Appellate court will not in appeal of motion for new trial control discretion of trial judge as to comparative credibility of witnesses who testified in support of motion and those who swore to contrary. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Presumption in favor of verdict sustains judge's discretion in upholding verdict when evidence conflicts.

- Under motion for new trial based upon newly discovered evidence, when evidence consists of conflicting oaths, presumption in favor of verdict is sufficient to sustain exercise of discretion by judge in upholding verdict. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

When countershowing is made on application under section, trial judge becomes trier of issue thus formed and the judge's discretion is final and cannot be controlled by the appellate court unless there is a manifest abuse of the discretion. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

In a motion for a new trial based upon newly discovered evidence in a criminal trial, when there is a countershowing by the state, the judge is the trier of facts, and it is the judge's province to determine credibility of facts and contradictory witnesses, and the judge's discretion in refusing a new trial on alleged newly discovered evidence will not be controlled unless manifestly abused. Bailey v. State, 47 Ga. App. 856, 171 S.E. 874 (1933).

When motion for new trial is based on ground of newly discovered evidence, and there is a countershowing, with conflicting evidence as to truth of alleged newly discovered facts, the Supreme Court will not interfere with grant or refusal of new trial on that ground, unless there has been a manifest abuse of discretion which law has vested in the trial judge, but not conferred on the Supreme Court. Southwell v. State, 188 Ga. 310, 4 S.E.2d 26 (1939).

Trial judge does not abuse the judge's discretion in refusing new trial when alleged newly discovered evidence is contradicted in countershowing. Atlanta Consol. S. Ry. v. McIntire, 103 Ga. 568, 29 S.E. 766 (1898); Crumley v. State, 23 Ga. App. 312, 98 S.E. 230 (1919); Edenfield v. Brinson, 149 Ga. 377, 100 S.E. 373 (1919); Fackler v. Lifsey, 28 Ga. App. 544, 112 S.E. 167 (1922).

When conflict arises as to material facts upon which motion for new trial based on newly discovered evidence was based and as to credibility of witnesses, the reviewing court will not hold that the court erred in overruling the motion. Harper v. State, 60 Ga. App. 684, 4 S.E.2d 734 (1939).

When countershowing rendered it doubtful as to what witness would testify.

- In motion for new trial upon ground of newly discovered evidence, when state made countershowing with a later affidavit of witness who proposed to testify in behalf of the defendant, which showed that the proposed witness largely repudiated the witness's first affidavit, rendering it doubtful or equivocal as to what the witness would testify, the judge did not err in overruling motion. Cannon v. State, 194 Ga. 277, 21 S.E.2d 689 (1942).

No error in denying defendant's motion for new trial.

- Trial court did not err in denying the defendant's motion for new trial when the state did not stipulate during the sentencing phase of trial that the shotgun found in the defendant's possession was improperly measured. The state simply did not object to the defendant's introduction into evidence of a document giving instructions for measuring the length of the barrel of a rifle or shotgun. Wiley v. State, 204 Ga. App. 881, 420 S.E.2d 783, cert. denied, 204 Ga. App. 922, 420 S.E.2d 783 (1992).

Time for amendments.

- Phrase "within the time allowed by law for entertaining a motion for new trial," indicates that the amendments should be allowed until the trial court's final disposition of a motion for a new trial timely filed and should not be limited by the 30-day period specified in O.C.G.A. § 5-5-40(a). Hegedus v. Hegedus, 255 Ga. 44, 335 S.E.2d 284 (1985).

Failure to request an evidentiary hearing in support of a claim of ineffectiveness of trial counsel raised in a motion for new trial results only in a waiver of the right to such a hearing, but not in a waiver of appellate consideration of the claim. Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Juror's alleged presence while codefendant pleaded guilty.

- Trial court properly denied the defendant's motion for a new trial as the trial court's finding that defendant's jurors were not present when the codefendant pleaded guilty was not clearly erroneous since the victims testified that: (1) the victims were present in the courtroom during the codefendant's guilty plea; (2) the victims were familiar with and would have recognized the jurors selected to hear the defendant's case; and (3) no jurors selected to hear the defendant's case were present in the courtroom during the codefendant's guilty plea. Alwin v. State, 267 Ga. App. 236, 599 S.E.2d 216 (2004).

Defendant's competency no basis to conduct hearing or issue ruling on new trial motion.

- Trial court erred by refusing to conduct a hearing or to rule on the defendant's motion for a new trial based upon the court's finding that the defendant was, at that time, mentally incompetent and unable to assist the counsel in challenging the conviction, as defendant's current mental incompetence provided no logical basis to delay a post-conviction proceeding to address whether the defendant was incompetent at trial, whether the trial court should have been on notice of the defendant's incompetency and conducted a hearing during trial, or whether the trial counsel was ineffective for failing to timely raise the competency issue. Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).

Without a record of trial, the Court of Appeals was forced to be in accord with the presumption in favor of regularity of the trial court's denial of the motion, and assume that the court's findings were supported by sufficient competent evidence; thus, the findings made against the intervenor regarding the legitimation of a child he claimed to be the biological father of were upheld. King v. Lusk, 280 Ga. App. 40, 633 S.E.2d 350 (2006).

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, § 284 et seq.

C.J.S.

- 66 C.J.S., New Trial, § 163 et seq.

ALR.

- Coram nobis on ground of newly discovered evidence, 33 A.L.R. 84.

Statements by witness after criminal trial tending to show that his testimony was perjured, as ground for new trial, 33 A.L.R. 550; 74 A.L.R. 757; 158 A.L.R. 1062.

Newly discovered evidence, corroborating testimony given only by a party or other interested witness, as ground for new trial, 158 A.L.R. 1253.

Statements of witness in civil action secured after trial, inconsistent with his testimony, as basis for new trial on ground of newly discovered evidence, 10 A.L.R.2d 381.

Evidence as to physical condition after trial as affecting right to new trial, 31 A.L.R.2d 1236.

New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.

Facts or evidence forgotten at trial as newly discovered evidence which will warrant grant of new trial in civil case, 50 A.L.R.2d 994.

Disclosure in criminal case of juror's political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 A.L.R.2d 1120.

Facts or evidence forgotten at trial as newly discovered evidence which will warrant grant of new trial in criminal case, 92 A.L.R.2d 992.

Perjury or wilfully false testimony of expert witness as basis for new trial on ground of newly discovered evidence, 38 A.L.R.3d 812.

New trial on ground of newly discovered evidence going to amount of recovery, 55 A.L.R.3d 696.

Recantation of testimony of witness as grounds for new trial - federal criminal cases, 94 A.L.R. Fed. 60.