State v. Hawkins

• Decision Date: 03 November 1922
• Docket Number: 11049.
• Citation: State v. Hawkins, 121 S.C. 290, 114 S.E. 538 (S.C. 1922)
• Parties: STATE v. HAWKINS.
• Court: South Carolina Supreme Court

114 S.E. 538

121 S.C. 290

STATE v. HAWKINS.

No. 11049.

Supreme Court of South Carolina

November 3, 1922

Appeal from General Sessions, Circuit Court, Greenville County; J W. De Vore, Judge.

Cliff Hawkins was convicted of murder and sentenced to be electrocuted, and from an order granting a new trial for after-discovered evidence after affirmance of the sentence and remittitur, the State appeals. Appeal dismissed .

Watts J., dissenting.

D. W Smoak, Sol., of Greenville, for the State.

Bonham & Price and Bowen & Bryson, all of Greenville, for respondent.

FRANK B. GARY, Circuit Judge.

Cliff Hawkins killed Josie Craig on July 5, 1920, and William Morgan on July 9, 1920. He was tried upon an indictment charging murder of William Morgan, September 3, 1920, before Judge De Vore and a jury, in the court of general sessions for Greenville county, was found guilty, and, after a motion for a new trial was refused, was sentenced to be electrocuted on October 1, 1920. He gave notice through his attorneys in due time of intention to appeal, but the appeal was not heard in the Supreme Court until the fall term, 1921, at which time the Supreme Court overruled all the appellant's exceptions, affirmed the judgment of the circuit court, and remanded the case for the purpose of assigning a new day for the execution of the sentence of the court. 110 S.E. 250. The remittitur was filed January 26, 1921. The defendant was resentenced to be electrocuted April 7, 1922, the sentence being pronounced March 15, 1922, the defendant's attorneys being present and making no motion of any kind. On March 23, 1922, notice of a motion for a new trial upon after-discovered evidence, to be heard before Judge T. J. Mauldin at chambers in Pickens, was served upon the solicitor. This motion was refused by Judge Mauldin upon the ground that he had no jurisdiction at chambers to hear the motion; and the defendant immediately gave notice of intention to appeal to the Supreme Court from the order refusing the motion, Judge Mauldin granting an order staying sentence. The defendant abandoned this appeal at the May term of the sessions court; and Judge Mauldin, after due notice by attorneys, heard and granted a motion for a new trial upon after-discovered evidence, in an order dated May 15, 1922. The state now appeals from this order, and at the same time asks leave to review the case of State v. Lee, 80 S.C. 367, 61 S.E. 657, and the cases following it. This leave is granted.

We are therefore called upon, not only to review the order of Judge Mauldin granting a new trial to the defendant upon after-discovered evidence, but we are also called upon to announce what the law is and what the practice should be when it is desired by a party to move for a new trial upon after-discovered evidence after the case has been appealed to the Supreme Court, the appeal disposed of, and the remittitur sent down. There can be no question as to what the practice now is, when it is desired to make such a motion in a case that has not been appealed to the Supreme Court nor in a case that has been appealed and is still pending there. The announcement of the practice that we are called upon to make should be concise, unequivocal, and so plain that there may be no excuse for departure from it.

In making that announcement of what will hereafter be the practice, whether it involves the overruling of other cases or not, we should have a threefold purpose in view: First, to formulate a practice that is based upon sound judicial principles, and not one that is based upon an arbitrary assumption of power; second, to formulate a policy that will preserve the liberties and rights of the individual citizens; third, to formulate a policy that will protect the interests of the state--not such a policy as may be used by the designing to block the process of the courts by an endless chain of motions and appeals.

With these cardinal ideas before us, we will first consider what should be considered the law upon the point suggested, and what should be announced as the practice that will hereafter be adhered to. We will then consider the merits of the appeal from the order named.

The first questions that naturally present themselves are: Does the case of State v. Lee, 80 S.C. 367, 61 S.E. 657 correctly announce the law concerning motions for new trials upon after-discovered evidence after an appeal to the Supreme Court and an affirmance of the judgment and after the remittitur has been sent down? If it does not, what should be announced as the law and the proper practice?

It will be recalled that the Supreme Court, in the case of State v. Turner, 39 S.C. 414, 420, 17 S.E. 888, having before it only the question of whether or not the circuit judge had jurisdiction to entertain motion under circumstances such as those above described, announced that when the Supreme Court affirmed the judgment appealed from and sent down the remittitur, it parted with jurisdiction over the case, and that jurisdiction was restored to the circuit court for the purpose only of executing the judgment. Clearly this statement as to the relation of the Supreme Court to the judgment was obiter dictum whilst the statement of the relation of the circuit judge to the judgment was responsive to the question involved. But even then, after making this statement of the relation of the two courts to the judgment, the Supreme Court proceeded, in favorem vitæ, to consider whether it would grant some relief to the defendant, and if the case had been one of merit it would have afforded that relief, thus showing that it still had some control over, or connection with, the judgment.

In that case a motion was made before the circuit court for a new trial upon after-discovered evidence, after the remittitur had been sent down. The circuit judge refused to entertain the motion, holding that he was without jurisdiction. Thereupon an appeal from this order was taken to the Supreme Court and the holding of the circuit judge that he was without jurisdiction to entertain the motion was affirmed. The Supreme Court on account of the gravity of the matter and in favorem vitæ retained the last appeal, and gave to the defendant the privilege of appearing before the Supreme Court and asking to be allowed to make his motion for a new trial before the circuit court. The application was made to the Supreme Court, but was denied for lack of merit. It was here distinctly recognized that the circuit court did not have jurisdiction to entertain the motion without the permission and direction of the Supreme Court. But even in that case the Supreme Court was willing, if defendant's petition was meritorious, to afford him some opportunity to have his motion heard.

Succeeding cases recognize this view of the law, notably the case of State v. Way, 40 S.C. 294, 18 S.E. 676. In this case Chief Justice McIver interpreting the Turner Case and upholding it, said:

"When the original appeals were determined by this court, and its judgment duly remitted to the circuit court, this court thereby lost its jurisdiction, and the circuit court thereby regained its jurisdiction, only for the purpose of carrying out the mandates of the Supreme Court. But if the circuit court is then called upon to take any other action in the premises, and either refuses or undertakes to exercise such jurisdiction, its action is reviewable by appeal, and when such appeal is perfected, this court again acquires jurisdiction of the matter appealed from, and having thus regained jurisdiction may make such order, within its jurisdictional limits, as may be deemed proper."

In the light of the facts of this proceeding it will be seen that the statement is tantamount to saying that after the circuit court was divested of jurisdiction of the case, except for the purpose of executing the judgment, the defendant by applying to the circuit court for a new trial, which court was confessedly without jurisdiction to entertain the motion, and then by appealing from the order declining to entertain the motion, may reinvest the Supreme Court with full jurisdiction of the subject-matter, and the Supreme Court may then issue such orders as it deems proper to the circuit court. This proposition, it seems to us, does not correctly state why the Supreme Court was in a position to give some relief in a meritorious case, even though the circuit court was powerless at that time. It involves the inconsistency pointed out by Chancellor Gaillard in Perkins v. Lang (1 McCord Eq. 30, note), cited in Ex parte Knox, 17 S.C. 207, viz.:

"That after a case has been solemnly determined by this court in the last resort, a single judge on the circuit might cause this decision to be again brought into question. This cannot be."

It would utterly destroy the symmetry of the law, tend to prolong litigation, and to produce endless confusion. It involves the further inconsistency that one judge, who has by appeal (the voluntary act of the defendant), been divested of any jurisdiction of the case or any control over the final judgment therein, has still the right to bring that final judgment of another court in review. It seems to us that it was this interpretation of the Turner Case, afterwards carried out, that caused the case to be subsequently overruled. It was not what was decided by the case upon the point involved, but it was the interpretation of it in State v. Way and other cases that made it a stumbling-block to the courts in the execution of their processes. The Turner Case contained sound principles, but when it was construed in such a way as to enable a convicted defendant after his appeal to the Supreme Court, to still go before a circuit judge directly as a matter of right, and thus bring in review the...