39 S.C. 420 | S.C. | 1893
The opinion of the court was delivered by
The defendant, George S. Turner, was indicted, tried and convicted of the murder of E. H. Finger at the July term (1891) of the Court of General Sessions for Spartanburg County, and was thereafter sentenced to be hanged on the first Friday of October of said year. The solicitor and the counsel for the defendant, waiving the necessity for a regular “Case,” agreed upon the following statement of facts:
“From the judgment and sentence the defendant duly appealed to this court. On this appeal the judgment of the Circuit*421 Court was affirmed, and on the 2d of December, 1892, the remittitur affirming the judgment and remanding the case to the Circuit Court in order that a new day might be fixed for the execution of the sentence heretofore imposed upon the defendant, was duly filed in the office of the clerk of the said Circuit Court for Spartanburg County.
“Thereafter the defendant gave due notice to the solicitor of a motion for a new trial as follows: ‘Please take notice that in the above stated case, we will move before his honor, Judge J. J. Norton, at 10 o’clock A. M., at Spartanburg C. H., on the 25th inst., or as soon thereafter as counsel can be heard, for a new trial herein, upon the printed case, pleadings and all proceedings herein, as well as upon affidavits, copies of which will be furnished to you. January 21,1893.’ These affidavits were thereafter duly served upon the solicitor. At the January term of the Court of-General Sessions for Spartanburg County, when the defendant was brought before the court, but before he was called upon to present himself in order that a new day might be set for the execution of the sentence heretofore pronounced upon him by the court, to wit: on the 28th of January, 1893, an attempt was made by counsel for defendant, who stated they desired to make a motion for a new trial upon said notice and affidavits. The court, upon objection being made by the solicitor to the hearing of this motion, on the ground that the coui’t had no power or jurisdiction to hear or entertain it, after argument pro and con, refused to hear or entertain this motion, on the ground that it had no power, discretion or jurisdiction to do so.
“After this the defendant was called upon to present himself for sentence, and after he was called upon to state, according to the usual formula, why a new day should not be set for the execution of the sentence heretofore pronounced upon him, answered, through his counsel, that he again renewed his motion for a new trial on after discovered evidence. The court thereupon again ruled that it had no power, discretion or jurisdiction to hear or entertain it. Thereupon the court passed the following order: Notice of a motion for a new trial on the ground of after discovered evidence, together with the affida*422 vits upon which it was based, having been duly served upon the solicitor, and the defendant having been brought before the court for the purpose of having a new day fixed for the execution of the sentence heretofore pronounced upon him by this court; and being there before the court, before he was called upon to present himself in order that a new day might be set for the execution of said sentence, the motion was made to the court for a new trial upon the ground of after discovered evidence. Whereupon the solicitor objected to the motion being entertained or heard by the court, upon the ground that the court had no discretion, jurisdiction or power to entertain or hear this motion, after the judgment of this court had been affirmed upon appeal by the Supreme Court, and the remittitur had been sent down to this court for the purpose of fixing a new day for the execution of the sentence heretofore pronounced upon the defendant by this court.
“The question of jurisdiction being thus raised, argument was heard upon it alone, and not upon the merits of the application or the sufficiency of the testimony contained in the affidavits to support it. After argment of counsel, it is adjudged: That this court has no discretion, jurisdiction or power to entertain or hear this motion after the judgment of this court had been affirmed upon appeal by the Supreme Court and the remittitur sent down, directing that a new day be fixed for the execution of the sentence heretofore imposed upon the defendant. The defendant being then called upon to present himself for sentence, and being called upon to state, according to the usual formula, why a new day should not be fixed for the execution of the sentence of this court heretofore pronounced upon him, answered, through his counsel, that he again desired to make his motion for a new trial upon the ground of after discovered evidence, as set forth in affidavits as hereinbefore stated, and now sought to be introduced. Whereupon it is adjudged that this court has no discretion, jurisdiction or power to hear or entertain said motion, &c. J. J. Horton, presiding judge.”
His honor thereupon fixed the second day of June, 1893, as the day for the carrying out and executing the sentence of this court heretofore prouounced upon the defendant. Thereafter
It seems to be the established general law that, under certain circumstances, the courts will order new trials on account
If, however, an ordinary appeal to the Supreme Court from the judgment of the first trial has been taken, and is pending in the Supreme Court, the Circuit Court for the time has lost jurisdiction of the case, and the Supreme Court has acquired it. In that state of things, the Circuit Court cannot grant a new trial for any cause. But the moving party may make application to the Supreme Court to suspend the hearing of the appeal in the ordinary course, and recommit the same to the Circuit Court, to allow him an opportunity to make a motion to the Circuit Court for a new trial, upon after discovered evidence,
We, therefore, concur with the Circuit Judge, that he had no power, discretion or jurisdiction to entertain and decide the motion for a new trial made before him in the Circuit Court. No error.
And finally, the question arises as to whether in such case there is any power of any hind to further consider the matter, without regard to the merits or demerits, of which, of course, we know nothing. In England, a recommendation to pardon affords the remedy for one whose conviction should not stand.: In South Carolina, certainly there can be no judicial relief, without some preliminary action on the part of the Supreme Court. In the case of Whaley v. The Bank of Charleston, 5 S. C., 262, there was a petition for leave to file a bill, in the nature of a bill of revieio. The court refused the motion, using these guarded terms: “Even assuming our right to control the judgments of the court, so as to subject them to our review and reversal, we see nothing in the matter before us to require our interference,” &c. In the case of Knox & Gill v. R. R. Com
It would seem, therefore, that iu the opinion of eminent judges, there may exist some power in the courts to control even after final judgment; but, as said by Judge Kershaw in Ex parte Knox, 17 S. C., 214: “While it is evident that the power must rest somewhere, it is as evident that the rule has not been established.” This court heard an application in behalf of the defendant, for leave to apply to the Circuit Court for an order granting 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. That motion a majority of the court felt constrained to refuse; and the only duty now remaining for the court to discharge, is the painful one of making the final orders.'
It is the judgment of this court, that Judge Norton’s order, refusing a motion for a new trial on the Circuit, be affirmed, and that the case be again remanded to the Circuit Court, in order that a new day may be assigned for the execution of the sentence heretofore imposed upon the defendant.