State v. David
| Citation | 14 S.C. 428 |
| Decision Date | 10 January 1881 |
| Docket Number | CASE No. 963. |
| Parties | STATE v. DAVID. |
| Court | United States State Supreme Court of South Carolina |
OPINION TEXT STARTS HERE
1. One convicted of murder moved at the same term for a new trial, upon the ground of insufficiency of evidence, which motion was overruled, and sentence was passed. At a subsequent term, but before execution of the sentence, this defendant moved for a new trial upon affidavits of after-discovered evidence, which motion was refused, upon the ground that there was no power to grant it. Held, that the Circuit Court did possess this power, but that it should be exercised with great caution.
2. Appellant having waived the right to be present in this court at the hearing of his appeal- Held, that his presence was not necessary.a1
Before MACKEY, J., Abbeville, October, 1880.
At the request of the defendant's counsel, this court heard this appeal in the absence of the prisoner. The case is fully stated in the opinion.
Mr. W. C. Benet, for appellant.
Mr. Solicitor Cothran, contra.
The opinion of the court was delivered by
The appellant, Jeff David, at a special term of the Court of General Sessions for Abbeville county, April, 1878, stood charged with murder. He was tried and found guilty. Before sentence his counsel made a motion for a new trial on the ground of insufficiency of evidence. The motion was refused and the appellant was sentenced to be hanged on May 17th, 1878.
The execution of this sentence has been stayed by executive clemency until now; the last respite fixes the day of execution upon March 18th, 1881.
In October, 1880, a motion was made before Judge Mackey, in General Sessions, at Abbeville, for a renewal and rehearing of the motion for a new trial, Judge Mackey having presided at the session of the court when the appellant was convicted. This last motion was made on the ground of after-discovered evidence. Upon the hearing of this motion Judge Mackey passed the following order:
“A motion for a new trial in the above case having been made before me by the defendant, on the ground of after-discovered evidence, and argument of defendant's counsel and of the solicitor for the state having been heard thereon:
It is ordered, that although on the strength of the affidavits of after-discovered evidence submitted by defendant's counsel, I should grant the motion for a new trial if I had the power to do so, the motion is hereby refused, because I conceive that I have not the power to grant it in the case stated.
“ Presiding Judge.
“October 20th, 1880.”
The defendant, by his attorney, Mr. W. C. Benet, appealed on the ground that the Circuit judge erred as to a matter of law in holding that he had no power to grant a new trial in the case stated; at the same time stating in his order that if he had the power, upon the affidavits submitted, he would grant the motion.
The only question raised in the appeal is this: Was there error of law on the part of the Circuit judge in holding that he had no power to grant the motion? Whether the affidavits submitted by the appellant, on his motion, were sufficient to call for the exercise of this power is not involved here, nor could it be reviewed if it were; but the question is, admitting that these affidavits were sufficient for this purpose, had the power of the judge been exhausted in his refusal of the first motion at the trial, and from which there had been no appeal?
Formerly, in this state, the Circuit judges had no power to hear motions for new trials. These motions were made before the Appeal Court, which court alone was invested with this power. Since the adoption of the present constitution, however, the grant of power therein to the present Supreme Court does not embrace the hearing of such motions. The power to hear motions for new trial is, in its nature, an appellate power, and appellate jurisdiction is expressly denied to the Supreme Court by the constitution, except as to cases in chancery. State v. Bailey, 1 S. C. 1.
While this is true as to the Supreme Court of this state, yet the Circuit Courts are invested with full powers on this subject. It belongs to these courts as an incident to their original jurisdiction, and, besides, by act of general assembly, (14 Stat. 136), it is expressly declared “that Circuit Courts shall have power to grant new trials in all cases where there has been a trial by jury, for reasons for which new trials have usually been granted in courts of law of the United States.”
The act of 1869 ( Gen. Stat. 497), which prescribes the mode for vacating erroneous judgments and the time within which motions may be made for this purpose, has no application to criminal cases; it is confined in its terms to judgments and decrees rendered by the Court of Common Pleas.
Before the amalgamation of the two courts of law and equity in this state each of these courts had power under certain circumstances to set aside judgments and decrees and to grant trials de novo; not strictly by motion for new trials, but upon other principles in the nature of a bill of review and rehearing for after-discovered testimony. The mode of procedure in these courts being different after the adoption of the constitution of 1868, all the power of the two courts was, by that constitution, vested in the Court of Common Pleas, and the act of 1869, supra, seems to have been passed to provide a uniform mode of procedure in such cases, so that now, since that act, erroneous judgments and decrees, which formerly had to be assailed according to the forms in use in the respective courts, may be vacated on motion in the Circuit Courts under the provisions of the act of 1869, provided that the motion is made within two years after the rendition of the judgment assailed; but this act, as has already been stated, has no application to criminal cases. The power of the Circuit Courts to grant new trials in criminal cases comes directly from the act of 1868, supra, and also as an incident to its original powers. State v. Bailey, supra.
The Circuit judge, in this case, gives no reason in his...
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State v. Faries
...... to be personally present at his trial. 16 C.J. "Criminal. Law," §§ 2066, 2068, 326, 940. As the trial, in the. sense contemplated, must be necessarily have terminated when. a motion for new trial or in arrest of judgment is made (. State v. Jefcocit, 20 S.C. 383; State v. David, 14 S.C. 428), so the trial of the issues joined. between the defendant and the state--which is the trial. sought to be changed as to venue or continued by these. motions--has not commenced and is necessarily still pending. when the motions are made. As was said by Chief Justice. McIver in ......
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...otherwise it will be presumed that other reasons would have been assigned, if those had not been deemed sufficient. State v. David, 14 S. C. 428; Wood v. Railroad, 19 S. C. 579; Montgomery v. Insurance Co., 55 S. C. 1, 32 S. E. 723; Mason v. Railroad, 58 S. C. 70, 36 S. E. 440, 53 L. R. A. ......
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Reed v. Southern Ry., Carolina Division
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