State v. Des Champs

• Citation: 131 S.E. 420,134 S.C. 179
• Decision Date: 28 January 1926
• Docket Number: 11910.
• Parties: STATE v. DES CHAMPS.
• Court: United States State Supreme Court of South Carolina

131 S.E. 420

134 S.C. 179

STATE v. DES CHAMPS.

No. 11910.

Supreme Court of South Carolina

January 28, 1926

Appeal from Common Pleas Circuit Court of Sumter County; Jno. S Wilson, Judge.

J. M Des Champs was convicted for malicious mischief, and he appeals. Affirmed.

Harby Nash & Hodges, of Sumter, and W. C. Davis, of Manning, for appellant.

F. A McLeod, Sol., and Epps & Levy, all of Sumter, for the State.

WATTS, J.

"This case was tried before his honor, Judge J. W. De Vore, and a jury on the 9th day of October, 1922. The defendant was indicted for malicious mischief, the specific charge being that he injured the land of one Paul B. Hodge by throwing the live nuts of nut grass thereon. The defendant was found guilty by the jury, but upon motion his honor, Judge De Vore, granted a new trial, from which the state appealed. Upon appeal (126 S.C. 416, 120 S.E. 491) the Supreme Court held the trial judge in error in ordering a new trial, and remanded the case for sentence. Pending the imposition of the judgment and sentence of the court, the defendant moved for a new trial before his honor, Judge John S. Wilson, upon affidavits set out herein, which was refused. The defendant served the following notice of appeal."

The exceptions are two in number. The first exception alleges error on the part of his honor, Judge De Vore, in his charge to the jury. This exception is without merit under the cases of State v. Bundy, 24 S.C. 439, 58 Am. Rep. 263; State v. Nance, 25 S.C. 168; State v. Welsh, 29 S.C. 4, 6 S.E. 894; State v. Jackson, 36 S.C. 487, 15 S.E. 559, 31 Am. St. Rep. 890; and State v. Anderson, 59 S.C. 229, 37 S.E. 820.

The second exception complains that his honor, Judge Wilson, was in error in not granting a new trial as asked for by the defendant. This was in a large measure addressed to the discretion of his honor, and it is certainly not made to appear that he abused his discretion.

The evidence is not new evidence, but cumulative, and could not have changed the result of the trial because the affidavits submitted were either contradicted by the other affidavits from the same parties or the affidavits were cumulative and similar to much other evidence of like nature given by the witnesses in the trial of the cause.

All exceptions are overruled, and judgment affirmed.

COTHRAN, J., and PURDY and RAMAGE, A. A. JJ., concur.

GARY, C.J., did not participate.

COTHRAN J. (concurring).

I feel constrained by the cases of State v. Nance, 25 S.C. 168; State v. Jackson, 36 S.C. 487, 15 S.E. 559, 31 Am. St. Rep. 890; State v. Anderson, 59 S.C. 229, 37 S.E. 820; State v. Gadsden, 70 S.C. 430, 50 S.E. 16; State v. Latimer, 88 S.C. 79, 70 S.E. 409; State v. Bundy, 24 S.C. 439, 58 Am. Rep. 263; and State v. Paulk, 18 S.C. 514, to concur in the opinion of Mr. Justice WATTS, although I must say that if it were an open question I would take the contrary view.

I think that there is a very great difference between what are denominated the "affirmative defenses" of insanity and alibi. Unquestionably, as the law presumes the sanity of a defendant who is shown by the evidence and admitted by him to have committed a crime, the burden is cast upon him to prove by the preponderance of the evidence the special plea of insanity, which he is required to interpose upon his arraignment subject to the companion rule that if upon the whole case the jury should entertain a reasonable doubt of his legal guilt, they must acquit.

But it seems to me that the so-called "affirmative defense" of alibi is not an affirmative defense at all. It is simply evidence adduced by the defendant to sustain his plea of not guilty; that he did not commit the crime for the reason that he was not at the scene of the crime at the time of the occurrence. The burden was upon the state to prove beyond a reasonable doubt that the defendant was present at the scene of the crime and actually committed it. If the defendant offers evidence which generates a...