State v. Johnson

• Decision Date: 05 August 1948
• Docket Number: 16118.
• Parties: STATE v. JOHNSON.
• Court: South Carolina Supreme Court

49 S.E.2d 6

213 S.C. 241

STATE v. JOHNSON.

No. 16118.

Supreme Court of South Carolina

August 5, 1948

W. T. McGowan, of Timmonsville, and McDonald &amp McGowan, of Florence, for appellant.

S S. Tison, Sol., of Bennettsville, for respondent.

PER CURIAM.

At the February (1947) term of the General Sessions Court for Chesterfield County, the appellant, in his absence, was tried and convicted of the charge of assault and battery with intent to kill. Where upon, the trial Judge, according to custom, filed with the Clerk of the Court a sealed sentence and issued a Bench Warrant for the arrest of the appellant.

Immediately upon his arrest, which was within a few days thereafter (less than ten), the appellant, through his counsel who had theretofore been employed to represent him in this case, and who had represented him at his preliminary hearing before the Magistrate who had issued the warrant for him when he was first charged with this offense, served notice on the Solicitor of the Judicial Circuit in which Chesterfield County is situate, that he would move before the trial Judge, who was then presiding at a term of a like court for Marlboro County in the same Circuit, for an order setting aside the conviction and sentence, based on affidavits attached to the notice. This motion was noticed to be heard within ten days of the appellant's conviction and sentence, but was apparently not argued until a much later date (probably by agreement), at which time or following, the trial Judge refused the motion, and hence this appeal.

Appellant states the 'Questions Involved' to be:

'1. Was there error in submitting the case to the jury when there was no competent testimony to identify the appellant as the Negro who cut the prosecuting witness?

'2. Was there error on the part of the trial Judge in failing to charge upon all material issues raised by the evidence, especially since appellant was being tried in his absence?

'3. Was there error in refusing appellant's motion for a new trial?

'4. Was there error in the order which settled this case for appeal?'

It will serve no useful purpose to herein set out the contents of the affidavits supporting the motion to set aside the conviction and sentence of the appellant and grant him a new trial, although in passing upon Questions 1 and 2, we will refer to statements in his affidavit used on that occasion. The granting of this motion was in the discretion of the trial Judge, and unless he has committed an abuse of this discretion, as a matter of law, we are powerless to interefere. While as above stated, we are not herein setting out the contents of the supporting affidavits, we have read them with care, and, we might add, with sympathetic understanding of the failure of appellant's counsel to notify him to appear for trial at the February (1947) term of the Court of General Sessions for Chesterfield County. The appearance bond of the appellant was for him to appear on the 11th day of November, 1946, to answer to a bill of indictment, but his appearance at that time when an indictment was not at that term of Court even handed to the Grand Jury, did not release him from the duty of attending future terms of the Court, until and unless there has been a final disposition of the charge against him. This is one of the purposes of the 'General Order' signed by the presiding Judge at the conclusion of terms of Courts of General Sessions held throughout the State, and of which we necessarily take judicial notice. If a defendant who is recognized to appear at the next ensuing term of Court was under no further duty to appear after the first term of Court if fortuitously his case was not reached at such first term, a chaotic condition of the enforcement of the criminal laws would forthwith result as respects a great number of cases. No notice to defendants or their counsel is necessary but it is their duty to attend all terms of Court in which they are interested, they having statutory notice of the time of the holding of such Courts.

The order of the trial Judge refusing a new trial, went far afield of the record in the statement of the facts, but on the record, we cannot say as a matter of law that he committed an abuse of discretion.

The appellant complains that there was no competent testimony identifying him as the assailant of the prosecuting witness.

As so often occurs, when a defendant is being tried in his absence (and also when without...