The opinion of the Court was delivered by
W. T. Jones, *43 the defendant-appellant herein, was tried at the February term of the Court of General Sessions for Union county in 1909, upon an indictment charging him with the murder of his wife, Marion E. Jones, by administering or causing to be administered to her strychnine poison. Upon his trial he was convicted of murder, with recommendation to mercy, and sentenced to imprisonment for life in the penitentiary.
A motion for a new trial upon the minutes of the Cоurt was made before the trial Judge, Hon. R. W. Memminger, and was by him refused.
An appeal from the judgment and sentence of the Circuit Court was taken to the Supreme Court, which affirmed the judgment of the Circuit Court, 86 S. C. 17. A petition for a rehearing was filed in the Supreme Court, and refused. Thereupon the execution of the judgment of the Circuit Court was stayed by an order of Hon. R. C. Watts, Circuit Judge, pending a motion for a new trial upon after discоvered evidence. This motion was heard at the summer term of the Court of Sessions for Union county, upon the petition set out in the brief, by the Hon. W. B. Gruber, Special Judge, and after a very full hearing the motion was refused.
Exceptions 2, 5, 11, 13, 16, 17, 20, 23, 24, 25, 26, 29, 31, 33, 34, allege error in the ruling of the Circuit Judge in recеiving affidavits of a “negative nature and incompetent because in reply to nothing contained in appellant’s affidavits submitted on the motion.”
Exceptions 35, 36, 38, charge error in the admission of affidavits which were intended to refute appellant’s ground for new trial, namely, that his wife was addicted to taking strychnine to' allay nervousness and for other purposes named. For this purpose they were clearly germain to the question, in dispute.
*46 Exceptions 54, 56, 57, 59, 60, 61, refer to the action of the Court below in its ruling and actions upon the allegations touching the bias, and) prejudice of certain jurors as shown by their previously formed and expressеd opinions. The reasons of the Circuit Judge amply justify and sustain his rulings on this point. We will have something further to say about it in the further consideration of the case.
Exception 55, is as follows: “That his Honor erred in excluding the following portion of the affidavit of Mrs. Agnes Thomas, to wit: ‘And that if they had done so she would have known it,’ the error being that the statement so excluded was as to a fact and not an inference. Upon the reading of the affidavit the following colloquy occurred :
“Court: That is the same as the other (to what this applies is not clear).
“Mr. Grier: Is not it incompetent for her to say ‘and that if they had done so she would have known it ?’
“The Court: I think that is a conclusion.”
*47 The argument passes this over without comment, evidently not regarding it material either way and we cаn’t see that the defendant was in any way prejudiced 'by it.
Exception 58 bears upon what occurred prior to the trial on the first day of the term in reference to remarks of counsel protesting against delay and urging a speedy trial, in no wise affecting the grounds of this motion.
The elaborate and able arguments of the zealous counsel for the appellant deals principally with three features of the case upon which the motion fоr a new trial was; based, and upon which the decision of the Circuit Judge is assailed:
I. That the charge against the defendant being that he caused the death of the deceased, who was his wife, by administering or causing to be administered to her strychnine poison and that he is now able and does produce a large array of witnesses who swear that to their knowledge the deceased was addicted to the hаbit of taking strychnine to allay nervousness caused by her taking- ergot and copperas to prevent conception and to produce miscarriages and that she took in this way a sufficient quantity of strychnine to account for the appearance of that poison in her stomach after death.
II. The bias and prejudice of certain jurors who had formed and expressed opinions adverse to the prisoner before the trial.
Incidentally the decision of the Circuit Judge is attacked upon other grounds such as the admission of irrelevant testimony and the exclusion of relevant testimony, but principally upon the two grounds named.
The grounds upon which new trials are granted after conviction and upon after discovered evidence are that the said evidence must be such as- would probably have changed the result if it had been before the jury. Secondly, that it was not known to the accused at the time of his trial, and
*49
thirdly that by due diligence it could not have been ascertained.
Sams
v.
Hoover,
33 S. C., p. 403,
As to the first position1, is it likely or probable that the testimony contained in these affidavits' on the part of the prisoner when refuted by that embraced in the affidavits on the part of the State would have produced a different result ? It should be kept in view at all times that this, as well as other questions of a like nature, is primarily for the Circuit Judge, who held that the -evidence would not or at least that it was not sufficiently strong to- justify a reversal of the judgment upon this ground. It should also be borne in mind that this evidence if the witnesses had been interrogated would have become known to the counsel for the defendant who have conducted the case with unusual zeal and conspicuous ability from the beginning even unto the end. To permit one on trial to hold back evidence he may have in his possession or which he failed to use due diligence to obtain and then use it as the grounds of a motion for a new trial in the event of an adverse verdict, would be destructive of the efficient administration of justice and subversive of the rule that it is to the interest of society to have аn end to litigation. Eor these reasons and in obedience to the rules of law we shall refer to, we cannot do otherwise than sustain the Circuit decision.
In the case of
State
v.
Don Carlos,
38 S. C. 226,
“In the early judicial history of this State such motions as this seem to have been very rarely, if ever, granted; for the reason given in State v. Harding, 2 Bay. 268: ‘That it might have a very mischievous tendency to establish a рrecedent of this kind, after a trial and conviction and after all the evidence on the part of the State had been fully disclosed ; as it was easy to forsee that a man whose life was in danger would, in every case, even to gain time, make use of a pretext of this kind to create delay; but more especially by the assistance of confederates, he might be enabled to procure unprincipled men to be witnesses, to contradict the evidence on the part of the State, and thereby defeat the ends of justice.’ See, also, Faber v. Baldrick, 1 Tr. Con. R. 374; Ecfort v. DesCondres, 1 Mill Con. R. 69; Evans v. Rogers, 2 Nott & McC. 563, and other authorities cited by the solicitor. Now, however, when such motions seem to be received with more favor, it is still the well settled rule that motions of this kind should be entertained with the utmost caution, ‘because, as is said by a learned Judge, there are but few cases tried in which something new may not be hunted up, and also because it tends to perjury.’ ” Per Simpson, C. J., in State v. David, 14 S. C. 432, citing with approval State v. Harding, supra.
“It is also well settled that a motion for a new trial upon the ground of after discovered evidence is addressed to the discretion of the Circuit Judge, and unless his discretion was abused or some rule of law was violated, this Court has no *52 authority to interfere in a case like this. State v. Workman, 15 S. C. 547; State v. Nance, 25 S. C. 174. As was said by Mr. Justice McGowan, in the case last cited: ‘In the class of cases to which this belongs (law cases), this is only a court for the correction of errors of law, and has no power to hear an original motion for a new trial upon the ground of subsequently discovered evidence, or to review the order of a Circuit Judge refusing such a motion, except in the single case where the Circuit Judge refuses to grant such a motion upon the ground that he has not the power to do so. The power to grant or refuse a motion for a new trial belongs exclusively to the Circuit Judge, and from his decision on the subject there is no appeal to this Court.’ To the same effect, see State v. Sweat, 16 S. C. 624, and Hyrne v. Erwin, 23 S. C. 231.
“The Circuit Judge seems to have refused this motion upon two grounds : 1st, Because it was not shown to his satisfaction that the newly discovered evidence could not, by the use of due diligence, have been discovered in time to be used at the trial. 2d, Because he did not think that the new evidence, if offered at the trial, could or should have influenced the result, or made it different from what it was. If the Circuit Judge was right in either of these conclusions, he was entirely justified in refusing a new trial, as shown by the case of Sams v. Hoover, 33 S. C. 403-4,12 S. E. 8 . Both of these grounds rest upon conclusions of fact, and, therefore, under the authorities above cited, are not reviewable here. As was said in Durant v. Philpot, 16 S. C. 124, ‘thе question of diligence is one of fact,’ and whether the new evidence was material, was so likewise; and certainly the Circuit Judge, who had just heard the whole case, was much more competent to determine the question of materiality than this Court could possibly be.”
In the recent case of the State v. Harvey Bradford, it is said by Mr. Justice Woods:
*53 “We are deeply impressed with the force of the affidavits made on those and other points on behalf of the defendant. Yet, it cannоt be doubted, that some of the affidavits are cumulative, and that if the statements contained1 in all of them had been admitted in evidence at the trial, there would have remained a sharp issue of fact, which might have been decided for or against the defendant according to the view taken by the jury of the credibility of the witnesses. It cannot be said1, therefore, that the affidavits must necessarily lead any reasonable mind to the inference that the newly discovered evidence would probably change the result. Nothing short of this would justify the conclusion that the Circuit 'Court abused its discretion in refusing the motion. This being so the law does not allow this Court to reverse the decision of the Circuit Court that a new trial should not be granted. In the recent case of Mills v. Atlantic C. L. R. R. Co., 87 S. C. 152, it is said: ‘The rule is well settled1 that a motion for a new trial on after discovered evidence is addressed to the discretion of the Circuit Court and the refusal of such motion will not be reviewed, unless it appears that there was abuse of discretion, or that the exercise of discretion was controlled by some error of law. State v. David, 14 S. C. 432; State v. Workman, 15 S. C. 547; Sams v. Hoover, 33 S. C. 404,12 S. E. 8 ; Seegers v. McCreary, 41 S. C. 549,19 S. E. 696 ; Peeples v. Werner & Co., 51 S. C. 405,29 S. E. 2 . Such a motion must generally depend on matters of fact, over which this Court has no jurisdiction in actions at law.’ ”
The motion for a new trial was based also upon the alleged misconduct of the jurors in the trial of the case.
It is the judgment of this Court that the decision of the Circuit Judge be affirmed and the appeal dismissed.