State v. Des Champs, 11910.
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | WATTS, J. |
| Citation | 131 S.E. 420,134 S.C. 179 |
| Parties | STATE v. DES CHAMPS. |
| Docket Number | 11910. |
| Decision Date | 28 January 1926 |
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 [134 S.C. 180] 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 [134 S.C. 181] 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).
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State v. Floyd, 13951.
...affirmative defense, as it had been theretofore long held. In the McGhee Case, the opinion of Mr. Justice Cothran in State v. Deschamps, 134 S.C. 179, 131 S.E. 420, on the matter of alibi, was adopted, and since the decision in the McGhee Case, the holding there has been followed. The true ......
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State v. Bealin, 15483.
...discussion of the nature of the defense of alibi, as it is now regarded in this jurisdiction, is found in the case of State v. Deschamps, 134 S.C. 179, 131 S.E. 420, from which we quote the following clear exposition of the law as expressed in the concurring opinion of Mr. Justice Cothran; ......
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State v. Perry, 5257.
...defendant is “illogical,” and adopting the concurring opinion of Justice Cothran from State v. Des Champs, infra ); State v. Des Champs, 134 S.C. 179, 181, 131 S.E. 420, 420 (1926) (Cothran, J., concurring) (“But it seems to me that the so-called ‘affirmative defense’ of alibi is not an aff......
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State v. McGhee, 12082.
...so that they may be made to work in harmony. The court is satisfied that the opinion of Mr. Justice Cothran in State v. Des Champs, 134 S.C. 179, 131 S.E. 420, holding that the defense of alibi is not an affirmative defense, correctly sets forth the law, and hereby adopts [137 S.C. 261] tha......