State v. Bethune

• Decision Date: 05 June 1916
• Docket Number: 9395.
• Citation: 89 S.E. 153,104 S.C. 353
• Parties: STATE v. BETHUNE.
• Court: South Carolina Supreme Court

89 S.E. 153

104 S.C. 353

STATE v. BETHUNE.

No. 9395.

Supreme Court of South Carolina

June 5, 1916

Appeal from Circuit Court of Clarendon County; J. W. De Vore, Judge.

Willie Bethune was convicted of murder, and he appeals. Judgment reversed, and case remanded for new trial.

See also, 86 S.C. 143, 67 S.E. 466; 93 S.C. 195, 75 S.E. 281.

John H Clifton and Harmon D. Moise, both of Sumter, for appellant.

Solicitor P. H. Stoll, of Kingstree, for the State.

GARY C.J.

This is an appeal from an order refusing a motion for a new trial on the ground of after-discovered evidence.

On the 13th day of January, 1916, Mr. L. D Jennings, an attorney at law of Sumter, S. C., made an affidavit stating the following facts:

"That he was of counsel for the prosecution in the case of the state against Willie Bethune, defendant; that he talked with the witness Alfred McFadden before the trial, in a preliminary investigation of what his testimony would consist of. The said witness Alfred McFadden made a statement to me at that time in which he stated that he did not know who fired the first shot, and that he had not seen who fired the first shot. Upon examination by the solicitor he stated entirely to the contrary, and stated that he had seen Bethune fire the first shot. McFadden was the only eyewitness for the state, and the jury must necessarily have rested their verdict of guilty upon his sworn testimony. His statement upon the stand was entirely different from the statement that he had made before the trial."

The appellant was tried for murder before the Honorable George W. Gage, as circuit judge, and the jury rendered a verdict of guilty, whereupon he was sentenced to suffer the penalty of death. In refusing a motion for a new trial his honor Judge Gage said:

"Whether this verdict is right depends on the testimony of the witness McFadden. I don't know him but the jury does. If he told the truth, it is right; if he told what is not the truth, he will have to answer for it before his Maker when he comes to die. Whether or not he told the truth is a matter for the jury, and they have accepted his testimony. The whole case rests upon McFadden's testimony."

A motion was made before his honor S.W. G. Shipp for an order staying the execution of the sentence in order that the defendant might make a motion for a new trial before his honor Judge De Vore on the ground of after-discovered evidence. In refusing the motion to stay the execution of the sentence his honor Judge Shipp said:

" I do not hesitate to say that upon an examination of the evidence upon which the defendant was convicted I would, if it were in my power, change the penalty from death to life imprisonment, and, had I the power, without an abuse of my discretion, I would grant the stay asked for. However, under my view of the law and of my duty, I must refuse the motion, and it is so ordered."

Thereafter his excellency Governor Manning granted a reprieve, and his honor Judge De Vore heard the motion for a new trial, and in refusing it used this language:

"The testimony upon which this motion is made does nothing more

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