State v. Clamp

• Decision Date: 16 March 1954
• Docket Number: No. 16846,16846
• Citation: 80 S.E.2d 918,225 S.C. 89
• Court: South Carolina Supreme Court
• Parties: STATE v. CLAMP.

Page 918

80 S.E.2d 918

225 S.C. 89

STATE v. CLAMP.

No. 16846.

Supreme Court of South Carolina.

March 16, 1954.

Harold Major, Anderson, R. B. Hildebrand, York, for appellant.

Rufus Fant, Jr., Sol., John C. Watkins, Anderson, for respondent.

T. B. GRENEKER, Acting Associate Justice.

The indictment which was returned against the appellant by the Grand Jury of Anderson County on the 2nd Monday in May, 1952 contained two counts: 1st, burglary; 2nd, armed robbery, the date of the alleged crimes being April 5, 1952. Upon this indictment the appellant was tried on February 17, 1953 before a jury in the Court of General Sessions for Anderson County, with Honorable Steve C. Griffith presiding, and was convicted on both counts with a recommendation to the mercy of the court. Appellant's motion for a new trial, the grounds of which were not stated in the transcript, was refused, and he was thereafter sentenced to a term of five years on each count, the sentences to run consecutively. The appellant now comes to this Court upon four exceptions. The fifth exception set out in the transcript was abandoned. The exceptions are considered seriatim.

Prior to the argument of the main appeal, a motion to suspend the appeal was made in order that the appellant may be permitted to move in the circuit court for a new trial on after-discovered evidence, and to this end affidavits on behalf of the appellant and counter affidavits by the State were, with the briefs of the parties, presented and oral arguments made. It necessarily follows that this motion must first be considered.

After a very careful study of the affidavits submitted by the appellant, as well as the affidavits used in resisting the motion, and a review of the entire transcript of record, we think that the question presented for determination is: would the alleged new or after-discovered evidence, if procured as desired by the appellant, be sufficient to make out the prima facie showing necessary to cause a suspension of the appeal for the purpose named, and does the showing made by the appellant measure up to that standard required in such cases as set forth in State v. Jones, 185 S.C. 274, 194 S.E. 11; 20 R.C.L. 290?

If a new trial were granted in this case and appellant's affidavits taken at full value, we must conclude that the witness Bobbie Thrasher would testify that she came to the Tucker home during the robbery along with King and Doris Sloan, that she saw the two robbers, observed them and in her judgment Clamp was not there and 'neither of them fitted the description of Julian Clamp.' This is the substance of what appellant contends Bobbie Thrasher would testify. Clamp also set forth in his affidavit that he had contacted Doris Sloan and that her testimony would be 'in substance the same as that of Bobbie Thrasher.'

Counter affidavits are in the record; one by Doris Sloan, who says that she was not at the preliminary, denies that she has been contacted by appellant, that she had not seen Clamp since the night of the robbery, they were all nervous 'and Mrs. Thrasher was hysterical, screaming and crying, I did not know either of the robbers and doubt if I could identify them.' She further states that Mrs. Thrasher, her sister, asked her to 'sign a paper' stating that Clamp was not one of the robbers, and that she could not do so as she did not know if Clamp was one of them. The counter affidavit of Cecil King sets forth that he is a brother-in-law of Doris Sloan and Bobbie Thrasher, that neither of them was at the preliminary and that Heyward Thrasher, husband of Bobbie Thrasher, offered him seventy-five dollars to change his testimony. There is also the affidavit of the Sheriff of Anderson County who stated that neither Doris Sloan nor Bobbie Thrasher was present at the preliminary and that as far as his office was concerned neither was served with a summons to be there.

Considering all of the affidavits and the entire record, as we must, may we conclude therefrom that the appellant has brought himself within the requirements of the law so clearly set forth in State v. Strickland, 201 S.C. 170, 22 S.E.2d 417, 418? The holding was:

'In order to warrant the granting of a new trial on the ground of after discovered evidence it must appear, (1) That the evidence is such as will probably change the result if a new trial is granted. (2) That it has been discovered since the trial. (3) That it could not have been discovered before the trial by the exercise of due diligence. (4) That it is material to the issue. (5) That it is not merely cumulative or impeaching.'

Appellant says in his affidavit that 'he saw present at the prliminary hearing two young women, Mrs. Heyward Thrasher (Bobbie Carolina Thrasher) and Mrs. Doris Sloan * * *' and referring to Cecil King, 'this witness testified at the Prliminary Hearing that these two young women heretofore referred to were with him when he went to Miss Tucker's home on the night of April 5, 1952.' It is therefore clearly apparent that appellant knew on August 7, 1952, the date of the preliminary, that these two women were at the home of Miss Tucker on the night of the robbery. Neither of the women testified at the preliminary. The indictment was returned on the 2nd Monday in May, 1952; he was tried on February 17, 1953, approximately nine months after the indictment, and more than six months after the preliminary. When appellant was tried, he knew that these women were not going to be called as witnesses for the state for the reason that in his presence and in the presence of his able and experienced counsel, upon motion of the defense, all witnesses were segregated. It was certainly known then that the two women would not be used as witnesses for the state. We know of no reason why the witnesses Threasher and Sloan could not have been interviewed at this time or at any other time since the date of the robbery. The record is silent as to any action taken by appellant until the affidavit of Bobbie Thrasher was made on August 4, 1953, nearly six months after trial. The contents of this affidavit, so far as the record reveals, were kept entirely within the knowledge of appellant until January 4, 1954, nearly a year after his trial. We think it rather clear that appellant contends he is entitled to a new trial so that he could have the testimony of Bobbie Thrasher and Doris Sloan (if she would so testify) to strengthen his defense of alibi. On this question Miss Tucker, the victim of the robbery, testified that the robbery was committed 'between eight and eight-thirty', while at least three witnesses for the defense testified that appellant was at his boarding house all of the evening of April 5, 1952. The 'whereabouts' or 'identification' of the appellant are not new questions raised by this motion, as both his identification and whereabouts were at issue in the trial and were decided by the jury adversely to him.

It has been repeatedly held by this Court that denial of new trial for after-discovered evidence, which tended only to impeach state's witness or corroborate testimony in support of plea of alibi, is not error. State v. Pittman, 137 S.C. 75, 134 S.E. 514.

There are, of course, cases in which motions of this kind should be entertained and granted in order that wrongs done may be corrected, but as a rule the courts do not look with favor upon motions of this character, as there must be an end to litigation in any case. State v. Augustine,131 S.C. 21, 126 S.E. 759.

It is also true that the rule is well settled that a motion for a new trial on the ground of after-discovered evidence is addressed to the sound discretion of the trial court and will not be reviewed unless there is abuse of that discretion or that the decision was influenced by an error of law. State v. Jones, 89 S.C. 41, 51, 71 S.E. 291, and other cases cited in State v. Augustine, supra.

In State v. Marks, 70 S.C. 448, 50 S.E. 14, 15, where a similar motion was before the Court, we find the following:

'Whether the deceased had a knife in his hand during the difficulty with the defendants was strenuously contested on the trial, and to reopen that matter, merely because some one has been discovered who has heard one of the state's witnesses make statements contradictory of his testimony on the trial, would establish a dangerous precedent.' And, 'If such a ground be held sufficient to sustain a motion like this, it would be opening the door to fraud and perjury, and cause interminable delay in the trial of causes.'

A reading of the affidavit of Cecil King clearly demonstrates that the application of the last quoted holding to the present case is obvious. And although King names Heyward Thrasher, the husband of Bobbie Thrasher, as the party who made this improper offer to him, we find no contradiction in the record by the person so named as to the contents of that affidavit.

We see no reason to hold that the alleged newly discovered evidence would probably change the result if a new trial were granted, and this in itself would be a sufficient reason for the refusal of appellant's motion, aside from what has been said above. And it should also be kept in mind that the alleged crimes were committed on April 5, 1952, the case was tried on February 17, 1953, and that this motion was first presented in January, 1954. It therefore seems apparent that the requirement of due diligence has not been complied with, and that the appellant has not brought himself within the requirements of the holdings of this Court relative to such motions.

Appellant's motion to be permitted to move in the circuit court for a new trial is accordingly refused.

We now consider the main appeal.

Exception 1

'That the Court erred in that it charged on the facts when it undertook to define the crime of burglary in that it charged the jury as follows: 'The walking into an open door would not be a breaking, but the mere opening of an unlatched door, or the mere...