State v. Ezzard

• Decision Date: 11 June 1894
• Citation: 41 S.C. 522,19 S.E. 854
• Court: South Carolina Supreme Court
• Parties: STATE v. EZZARD.

19 S.E. 854

41 S.C. 522

STATE

v.EZZARD.

Supreme Court of South Carolina.

June 11, 1894.

Criminal Law—New Trial after Appeal— Leave of Appellate Court.

A motion to suspend an appeal, to enable defendant to move for a new trial on the ground of newly-discovered evidence, will be overruled, where it is supported only by affidavits of defendant, who did not testify on the trial, as to his connection with the transactions out of which the prosecution arose, and of witnesses resident beyond the jurisdiction of the court.

Appeal from general sessions circuit court of Barnwell county; J. J. Norton, Judge.

T. W. Ezzard was convicted of fraudulent breach of trust, and appealed. After the conviction was affirmed, defendant moved for a new trial on the ground of newly-discovered evidence. From an order refusing the motion, defendant appealed, and now moves to suspend the appeal, and for leave to renew the motion for a new trial in the court below. Motion refused, and order affirmed.

Robert Aldrich and W. P. Price, for appellant.

Mr. Bellinger, for the State.

McIVER, C. J. The appellant was Indicted for and convicted of, the offense of a breach of trust, with a fraudulent Intent; and from the judgment rendered he gave due notice of appeal, and the same was heard by this court during November term, 1893. On the 13th February, 1894, the judgment of this court (18 S. E. 1025) was duly filed, dismissing said appeal, and affirming the judgment of the circuit court, and the same was duly remitted to the circuit court At the succeeding term of that court the defendant gave notice of a motion for a new trial upon the ground of after-discovered evidence, based upon the record in the case, and certain affidavits annexed to the notice of the motion. This motion came on to be heard before his honor, Judge Norton, who held that he had no jurisdiction to determine such a motion at that stage of the case, and upon that ground refused the motion. From the order refusing such motion, it is claimed that the defendant appealed, though, in the papers filed here as the return, we are unable to find any notice of appeal, nor do we find any exceptions to the order of Judge Norton. We are also unable to find in the record any notice of a motion, to be addressed to this court, for an order suspending the last-mentioned appeal, and granting leave to appellant to move the circuit court for a new trial upon the ground of after-discovered evidence. These omissions would be fatal to the application now made to this court; but as the case is a grave one, involving personal liberty, and as the solicitor has consented, in writing, to an order submitting the case on the record as it stands, in which it is recited that the defendant has appealed from the above-mentioned order of Judge Norton, and has perfected such appeal, and that he has served a notice of a motion for an order suspending such appeal for the purpose of enabling the defendant to move the circuit court for a new trial upon the ground of after-discovered evidence, we have...