State v. Hewitt
| Decision Date | 13 July 1945 |
| Docket Number | 15751. |
| Citation | 34 S.E.2d 764,206 S.C. 409 |
| Parties | STATE v. HEWITT et al. |
| Court | South Carolina Supreme Court |
Culbertson & Brown, of Greenville, for appellants.
W A. Bull, Sol., and W. E. Bowen, both of Greenville, for respondent.
The appellants, John C. Hewitt, his wife, Veva Hewitt, and their son, Geno Hewitt, were tried on October 23, 1944, upon an indictment charging them with the murder of J. W. King. John C. Hewitt and Veva Hewitt were convicted of manslaughter Geno Hewitt was found guilty of manslaughter, with recommendation to mercy.
At the call of the case, a motion was made on behalf of all of the defendants for a continuance beyond the term, upon the ground that three important and material witnesses for the defense were absent and unavailable, two of whom had testified at a previous trial of the case and for whom subpoenas had been issued. No compulsory process was asked for. The third witness was away in the armed forces of the United States. The solicitor agreed to admit a statement from the witness who was in the armed services as to what he would testify to if present; and further agreed that the testimony of the other two defense witnesses, given at the first trial, should be read to the jury and received as evidence in the case.
The trial Judge overruled the motion for continuance, ordered the case to trial, and the statement and testimony above referred to were read to the jury under proper instructions from the court.
The record fails to disclose that the appellants complied with Rule 27 of the Circuit Court governing application for a continuance. However, it does not appear that the trial judge in overruling the motion for a continuance required that the provisions of the rule be followed. The ruling was based upon his discretion.
Motions for continuance on account of the absence of witnesses are addressed to the discretion of the trial court, and this Court will not interfere unless a clear case of legal error is shown. State v. Murphy, 48 S.C. 1, 25 S.E. 43; State v. Smith, 56 S.C. 378, 34 S.E. 657; State v. Pope, 78 S.C. 264, 58 S.E. 815; State v. Hester, 137 S.C. 145, 134 S.E. 885. We do not find anything in the record here to show that the discretion of the trial Judge was wrongly exercised, nor was it controlled by any erroneous view of the law.
It is charged as error that the Circuit Judge did not require the defendants to be arraigned a second time, they having been at a former Court arraigned and put upon trial; a new trial having been ordered by this Court.
The same defendants were previously tried, on October 27, 1943, upon the same charge, and found guilty of manslaughter. Upon appeal to this Court they were granted a new trial. State v. Hewitt, 205 S.C. 207, 31 S.E.2d 257. It does not clearly appear from the record that the defendants asked to be arraigned, but aside from this, a second arraignment was not necessary. They were tried upon the same indictment which had been used in the former trial, and on the face of that indictment is the notation that they were arraigned on October 25, 1943, four days before their first trial.
Where a defendant has been arraigned and has pleaded not guilty, and a judgment of conviction is reversed and the case remanded, a re-arraignment is unnecessary, as the plea of not guilty interposed on the first trial remains in full force until the indictment is finally disposed of. State v. Stewart, 26 S.C. 125, 1 S.E. 468; 22 C.J.S., Criminal Law, § 409, p. 628, 16 C.J. § 713, p. 388.
But in no event were the defendants prejudiced. The record shows that after the trial jury was empaneled, the clerk charged them, and in so doing followed the usual procedure. What is commonly called 'charging the jury' by the clerk, is a well known step in the trial of criminal cases. The charge begins with the statement: 'Gentlemen of the Jury, who have been sworn, look upon the prisoner at the bar and hearken to his charge.' The clerk then practically reads the indictment to the jury, informing them of the particulars of the charge. As stated, this was done in this case, and appellants, who had been tried once already upon the same indictment, were fully informed of the charge made against them, and were denied no right. They obtained the full benefit of their plea of not guilty.
Finally, it is urged that the Court erred in permitting the solicitor to use the same indictment which had been used at the former trial, upon which was endorsed the verdict rendered by the jury which sat in the first trial.
The trial Judge in his charge to the jury specifically instructed them to
Counsel for defendants made no objection when this instruction was given, nor when the indictment was handed to the foreman of the jury. The point was not made until the case reached this Court on appeal.
The issue presented by this ground of appeal appears to be a novel one in this jurisdiction. Appellants contend that the use of the same indictment on which was endorsed the verdict of manslaughter, rendered at the former trial, was highly prejudicial to the rights of the defendants, because the trial jury was thus given...
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State v. Horton
... ... witness is addressed to the sound discretion of the trial ... judge, whose ruling will not be disturbed unless legal error ... is shown. State v. Johnson, 196 S.C. 497, 14 ... S.E.2d [209 S.C. 156] 24; State v. Mishoe, 198 S.C ... 215, 17 S.E.2d 142; State v. Hewitt, 206 S.C. 409, ... 34 S.E.2d 764. In our opinion, no legal error on the part of ... the trial judge has been shown, and this ground of appeal ... must be overruled ... It is ... argued that defendant's motion for a new trial should ... have been granted on the ground that ... ...