State v. Augustine

• Decision Date: 25 February 1925
• Docket Number: 11697.
• Citation: State v. Augustine, 131 S.C. 21, 126 S.E. 759 (S.C. 1925)
• Parties: STATE v. AUGUSTINE.
• Court: South Carolina Supreme Court

126 S.E. 759

131 S.C. 21

STATE v. AUGUSTINE.

No. 11697.

Supreme Court of South Carolina

February 25, 1925

Appeal from General Sessions Circuit Court of Greenwood County; S.W G. Shipp, Judge.

Henry R. Augustine was convicted of assault and battery with intent to kill, and he appeals. Affirmed.

The defendant appeals from the order dismissing the appeal from the county court on the following exceptions, to wit:

Exception One. His honor erred in overruling the exception to the judgment of the county court in refusing to grant the defendant a new trial during the term on the strength of the after-discovered evidence of A. A. Duncan; the error being that such testimony was material as to whether the defendant fired his rifle, the testimony not being cumulative, and the defendant was entitled to have the jury pass upon this question.

Exception Two. It was error in his honor to sustain the judgment of the county court in refusing a new trial upon the after discovered testimony of F. H. Suits; the error being that this testimony was not discovered until after the trial, it could not be discovered by due diligence, it is material, and would probably change the result, and the defendant was entitled to have the jury pass upon it.

Exception Three. It was error in his honor to find and hold in his decree that "I cannot say that the new evidence would probably change the result, if a new trial should be granted. Such was the opinion of the county judge." The error is one of fact. The county judge dismissed the motion for a new trial because "it is the opinion of the court that the said defendant has not made a sufficient showing to entitle him to a new trial."

Exception Four. His honor erred in not sustaining the exception to the county court in dismissing the motions for a new trial upon the ground that "defendant has not made a sufficient showing to entitle him to a new trial." It is respectfully submitted that it was an abuse of discretion to totally disregard the affidavits of the defendant and his attorney as to the use of due diligence in discovering testimony.

Exception Five. It was error to sustain the judgment of the county court in refusing a new trial so that the testimony of F. H Suits and the other witness, whose name is unknown, could be passed upon by the jury. The error is that none of this testimony is cumulative, and that these are the only eyewitnesses to the offense, if one were committed, except the officers who testified for the state.

Exception Six. It was error in his honor to hold that the motion for a new trial was made after the appeal had been dismissed; the error being that the motion for a new trial was made the same day that the motion to dismiss the appeal was made and before said appeal was dismissed.

Exception Seven. It was error in his honor to find that the motion comes too late; the error being that the motion was made at the first term of the court after the refusal of clemency was made known and the Legislature, of which the defendant's attorney was a member, had adjourned.

We agree that the above shall constitute the "case" on appeal.

Lloyd B. Harrison, of Greenwood, for appellant.

H. S Blackwell, Sol., of Laurens, and Marshall F. Sanders, Co. Sol., of Greenwood, for the State.

WATTS J.

"The defendant, Henry R. Augustine, was tried in the county court for Greenwood county at the May term, 1923, on a charge of assault and battery with intent to kill. He was convicted by a jury and given a sentence of 24 months, 18 months of which were suspended during good behavior upon the payment of a fine of $200.

During the same term of court a motion was made for a new trial based upon after discovered or newly discovered evidence, and the affidavit of A. A. Duncan was offered in substantiation of this motion. The motion was overruled.

The defendant gave notice of intention to appeal to the general sessions court for Greenwood county, and afterwards, with the consent...