39 S.C. 414 | S.C. | 1893
Lead Opinion
The opinion of the court was delivered by
But it seems, since those early days, the rigor of the law has been so abated that new trials may be granted, even after conviction, upon the ground of after discovered evidence. State v. David, 14 S. C., 428; State v. Workman, 15 Id., 540; State v. Chavis, 34 Id., 132; State v. Price, 35 Id., 273. In each of these cases thus cited the motion was made before the Supreme Court had passed upon the judgment of conviction in the Circuit Court. This distinction in our decisions, together with other matters relating to this subject, will be presented in the judgment of this court, not yet filed, prepared by Mr. Justice McGowan, in the appeal from Judge Norton’s refusal to entertain this motion.
In the case at bar, the moving party has met, at least by a prima facie showing, the first and second requirements. What is the status of his showing, prima facie, as to the materiality of the after discovered evidence? We have carefully reviewed the entire case presented at the hearing of the appeal on its merits, and have most carefully studied the affidavits of the proposed witnesses. Candor compels us to admit that we are
It was proved by the prisoner that.he knew Edward EL Finger wished to take his life; his wife and son had both so warned him. A witness, Tom Petty, had testified at the trial that Edward H. Finger had, in the city of Spartanburg, on the salesday in February, 1890, declared that he intended to take Turner’s life. It was testified to by every witness examined for the State and the defence on the trial, and who was present at the homicide, that as the deceased and three others were driving their wagons laden with guano past the storehouse of Turner, on the 7th day of March, 1890, angry words passed between the deceased and the prisoner, and that Edward H. Finger first spoke such angry words; that the prisoner was standing in the door of his storehouse, and when dared into the public highway by Edward EL Finger (who was at that time standing in such highway), went out to, or near to, such highway, and immediately thereafter the homicide occurred. It is true that the prisoner at such trial testified that, after this dare from Edward H. Finger, he left his position in the door of his storehouse in order to go to his gin house. The testimony on the part of the proposed new witnesses to reinforce this peace
In an effort to make out a prima facie showing before this court on such a motion as the present, in order that permission may be accorded to go before a Circuit Judge to move for a new trial upon after discovered evidence, the moving party should show facts external to those which transpired at the trial. Great caution, also, must be observed by this court in passing upon such showing, “because, as it 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.” State v. David, 14 S. C., 432.
It is the judgment of this court, that the motion for leave to apply to the Circuit Court for a new trial upon after discovered testimony, be refused.
This order was filed May 26, 1893, and was as follows:
Per Curiam. In this case defendant has appealed from an order of his honor, Judge Norton, refusing to entertain jurisdiction of a motion for a new tidal upon the ground of after discovered evidence, who based his refusal upon the sole ground that he had no power to do so after the former appeal in this case had been dismissed, and the case remitted to the Circuit Court for the sole purpose of having a new day assigned for the execution of the sentence heretofore imposed. While this court, for reasons which will be stated in an opinion hereafter to be filed, fully concur in the view taken by the Circuit Judge, yet, owing to the gravity of the case, and in favorem vita, judgment to that effect will not now be rendered, but the case will be retained in this court for the purpose of enabling the appellant, if he shall be so advised, to move this court, at the earliest practicable day, for leave to apply to the Circuit Court for a motion for a new trial upon the ground of after discovered evidence, in accordance with the established practice in such cases, where, pending an appeal, the appellant desires to obtain leave to make such a motion in the Circuit Court. If, however, the appellant shall fail to move this court, after due notice to the solicitor, for such leave, on the first day of the next sitting of this court, which will be on the 2Yth day of June next, then the present appeal will be dismissed. It is further ordered, that the clerk of this court do forthwith furnish certified copies of this order to the counsel engaged in the cause.
See next case, infra.
Dissenting Opinion
dissenting. I find myself compelled, most reluctantly, to dissent from the conclusion reached by the majority of the court in this case. There are many considerations which induce me to regret that I cannot agree with my brethren, for whose judgment, learning, and ability I entertain such high respect. Some of these considerations it will be needless to state, while others it would be, perhaps, improper even to allude to in a judicial opinion, and I shall, therefore, confine myself simply to a statement, in brief form, of the reasons why I am unable to concur in the view taken by the majority of the court.
This court, not having been invested by the Constitution
It seems to me, therefore, that the only question is, whether the appellant has made such a prima fade showing as would warrant this court in suspending the determination of the case until the appellant can have an opportunity of making his application to the Circuit Court for a new trial upon the ground of after discovered evidence. Without going into any discussion of the facts disclosed by the affidavits submitted upon the hearing of this motion, which, under the circumstances, would certainly be unnecessary, if not improper, I feel bound to say that a prima fade showing was made; but whether sufficient to require the granting of a new trial is a wholly different question, upon which I do not feel at liberty to express, or even
Motion refused.
Concurrence Opinion
I concur in the result with Mr. Justice Pope. Without attempting to review the sad story, it may be enough to say, that the matter submitted to the court by affidavits, consisted of statements of verbal testimony, not offered at the trial, which for the most part was “merely cumulative;” and if offered, I cannot conscientiously say, “would in all probability have changed the result.”