State v. Farris

• Decision Date: 13 December 1897
• Citation: 28 S.E. 370,51 S.C. 176
• Parties: STATE v. FARRIS.
• Court: South Carolina Supreme Court

28 S.E. 370

51 S.C. 176

STATE

v.FARRIS.

Supreme Court of South Carolina.

Dec. 13, 1897.

New Trial—Discretion of Court.

Where an appeal is suspended by the supreme court in order to allow appellant to move for a new trial on the ground of after-discovered evidence, the circuit court, in hearing said motion, should not be influenced by the fact that the supreme court has granted such leave.

Appeal from general sessions circuit court of Beaufort county; Ernest Gary, Judge.

W. D. Farris was convicted of an offense, and he appealed. On motion to suspend appeal in order to enable defendant to move for a new trial before the circuit court. Sustained.

W. S. Tillinghast, for appellant

G. Duncan Bellinger, for the State.

McIVER, C. J. In this case two motions were submitted: (1) A motion to grant the prisoner bail pending his appeal, and (2) a motion to suspend the appeal for the purpose of enabling the defendant to move before the circuit court for a new trial upon the ground of after-discovered evidence.

The first motion has been disposed of by an order heretofore granted, allowing the prisoner's application for bail, for the reasons stated in an opinion accompanying said order. 28 S. W. 308. It therefore only remains for us to dispose of the second motion. Inasmuch as this court has no jurisdiction of questions of fact in a law case, and inasmuch as motions of the character of the one now under consideration depend mainly upon questions of fact, It has been found necessary to adopt the practice, which is now well settled, that, where the motion for the new trial cannot be made before the appeal is perfected, whereby this court acquires and the circuit court loses jurisdiction of the case, this court upon a proper showing, will grant an order suspending the appeal, with leave to the appellant to move before the circuit court, which is invested with jurisdiction of questions of fact, for a new trial upon the ground of after-discovered evidence. But such an order will not be granted by this court unless there is such a prima facie showing made as will satisfy this court that the motion is not frivolous, or made for delay merely, but may have some merit in It. So that the only question in this case is whether such a prima facie showing has been made. Without going into any consideration of the facts presented by the affidavits submitted, which it is not necessary, and scarcely proper, for us to do, as that might work some prejudice to the one party or the other, it...