34 S.C. 132 | S.C. | 1891
The opinion of the court was delivered by
In this case the defendant was indicted for, and convicted of, the offence of privily stealing from the person of another. Upon the rendition of the verdict a motion for a new trial on the minutes of the court was made and refused, whereupon the defendant was sentenced to fifteen months’ imprisonment in the penitentiary. After the adjournment of the court a motion was made before his honor, Judge Izlar, at chambers, who had presided at the trial, for a new trial upon the ground of after-discovered evidence, who held that he had no jurisdiction to hear such a motion at chambers, and therefore declined to consider the motion on its merits. Defendant appeals upon the several grounds set out in the record. The first ground having very properly been abandoned, need not be stated. The second imputes error to the Circuit Judge in charging the jury that “in matters of proof of this kind it would not be necessary for the State to show that there was no force used.” The third and fourth grounds raise, in’ different forms, the question whether the Circuit Judge erred in holding that he had no jurisdiction at chambers to hear a motion for new trial upon the ground of after-discovered evidence.
In considering the second ground of appeal it would be well to understand exactly what the Circuit Judge did say to the jury ; and for this purpose we extract from his charge, as set out in the
Such a view cannot be accepted. All that is necessary for the State to prove under an indictment for any offence is the existence of all the facts necessary to constitute such offence, and if it is claimed that other facts exist which would show that the offence is really of a different character from that charged, that is a matter to be shown by the defence, and need not be negatived by the State, unless the statute creating the offence shall so require; and certainly there is no such requirement in the statute under
is no authority to show that a judge at chambers has any such jurisdiction by virtue of any powers inherent in his office. If, therefore, such a power exists, it must be derived either from the constitution or some statute, and no provision of the constitution, nor has any statute, been cited conferring such a power. It cannot be derived from the act of 1868, now incorporated in the General Statutes as section 2113, for there the power is conferred upon the Circuit Courts, not upon the judges; and the distinction between the powers of .the Circuit Court and a judge at chambers is well recognized, especially in regard to motions for a new trial. Clawson v. Hutchinson, 14 S. C., 517; State v. David, 14 S. C., 428. These cases also show that such a power cannot be derived from the act of 1869, for the reasons therein stated, and we may add, for the additional reason that such act has been expressly repealed by the act of 1880, 17 Stat., 341. It is clear, therefore, that there was no error on the part of Judge Izlar in declining to take jurisdiction of the motion at chambers.
It seems to be supposed that the practical result would be to deprive a party, who had been convicted in the Court of Sessions and sentenced, of the privilege of moving for a new trial upon the ground of after-discovered evidence, where the discovery was not made until after judgment rendered. But this is a mistake, as shown by State v. David, supra, where such a motion was
The judgment of this court is, that the judgment of the Circuit Court be affirmed, without prejudice to the right of the defendant to move for a new trial upon the ground of after-discovered evidence before the proper jurisdiction, if he shall be so advised.