State v. Kennedy
Decision Date | 27 June 1935 |
Docket Number | 14099. |
Parties | STATE v. KENNEDY. |
Court | South Carolina Supreme Court |
Motion Denied and Order Staying Remittitur Revoked Aug. 5, 1935.
On Petition for an Order Staying Remittitur and Allowing Motion for New Trial.
Appeal from General Sessions Circuit Court of Bamberg County; S.W G. Shipp, Judge.
R. D Kennedy was convicted of manslaughter, and he appeals. After judgment was affirmed, defendant petitioned the chief justice for an order staying the remittitur and allowing defendant to make his motion before the whole court in special session for leave to make a motion in the circuit court for a new trial.
Motion of the defendant denied, and order issued by chief justice staying the remittitur revoked.
Brown & Bush, of Barnwell, and Kearse & Kearse and S. G. Mayfield all of Bamberg, for appellant.
Sol. B. D. Carter, of Bamberg, and J. W. Crum, of Denmark, for the State.
The appellant, R. D. Kennedy, was tried at a special term of the court of general sessions for Bamberg county in November, 1934, upon an indictment charging him with the murder of John H. Clark. He was convicted of manslaughter, and was sentenced to serve ten years in the state penitentiary or a like period upon the public works of Bamberg county.
The homicide occurred in the town of Denmark, in Bamberg county, on July 4, 1933. At the coroner's inquest, which was promptly held following the homicide, S. G. Mayfield, Esquire, appeared as counsel for the appellant, and thereafter, on July 10, 1933, Mr. Mayfield, upon notice to the state, attempted unsuccessfully to obtain bail for his client before his honor, Judge H. F. Rice, resident circuit judge. Later Messrs. Brown & Bush and J. E. Steadman, Esquire, together with Mr. Mayfield, appeared as counsel for the defendant at the next term of the court of general sessions for Bamberg county, convening on the third Monday in September, 1933.
At this term a true bill was returned upon the indictment charging the appellant with the murder of J. H. Clark. The case was called for trial by the solicitor, and continued on motion of the defense.
On October 12, 1933, the motion for bail was renewed before his honor, Judge Grimball, by Mr. Brown, Mr. Mayfield, and Mr. Steadman, and at this hearing Judge Grimball allowed bail.
At the February term of the court, 1934, the case was continued on motion of the defendant, Mr. Brown making the motion, but the other counsel herein mentioned also appearing for the defendant.
Prior to the next term of the court and about two months prior to the trial Mr. Steadman having removed from the state to accept employment with the government in Washington, the firm of Kearse & Kearse, of Bamberg, was added to the defense counsel, and at the following regular term, September, 1934, the case was continued by mutual consent because of the indisposition of the solicitor.
On Monday, November 5, 1934, at a special term of the court, the state called this case for trial, whereupon the defense moved for a continuance upon the ground that Mr. Brown, chief counsel, was necessarily detained at his home on account of illness. However, Mr. Mayfield and the firm of Kearse & Kearse of defense counsel were present appearing for the appellant. At this stage of the matter, his honor, Judge Shipp, the presiding judge, stated that he would postpone the calling of the case until 3 o'clock p. m. Tuesday afternoon, November 6th. When this hour arrived, the solicitor again pressed for trial, and the motion for continuance was renewed, and refused. The case accordingly proceeded to trial, with Mr. Mayfield, appellant's original attorney, and the firm of Kearse & Kearse appearing for and actually representing the appellant.
The motion for continuance was based solely upon a letter from Mr. Brown to Judge Shipp under date November 6, 1934, and a certificate from Mr. Brown's attending physician to the effect that it was utterly impossible for Mr. Brown, on account of his illness, to attend the trial.
The letter sets out in considerable detail Mr. Brown's connection with the case as chief counsel for the defendant, and his special knowledge of its details and complexities; he having conferred when other counsel were not present with many of the numerous witnesses the defendant expected to use. The letter also stated that there were some features of the case that no one was familiar with except Mr. Brown.
Judge Shipp had this to say in overruling the motion for a continuance:
The exceptions of the appellant raise only one question for us to pass upon, and that is, Did the circuit judge err, under the circumstances related, in refusing to grant the motion for a continuance, and was such refusal an abuse of his judicial discretion?
The authorities in this state are adverse to the position of appellant, and sustain the circuit judge.
As declared by this court in State v. Crosby, 160 S.C. 301, 158 S.E. 685, matters of continuance must be left to the sound discretion of the court, and unless it clearly appears from the record that there was an abuse of discretion, this court will sustain the action of the trial judge.
The syllabus in the case of State v. Rabens, 79 S.C. 542, 60 S.E. 442, 1110, which correctly states the holding of the court, is as follows: "Refusal to continue a case beyond the term under facts here on ground that defendant and his counsel had not had time to properly prepare the defense and on supposition that case would not be tried until next term, also refusal to continue case until next day on account of fatigue of counsel in traveling a long distance, defendant having other able counsel in court, and court having no other business, held not an abuse of discretion."
The appeal in the case of State v. Edwards, 86 S.C. 215, 68 S.E. 524, 525, presented a far graver issue than is present in this appeal. In that case the defendant was tried and convicted of murder without recommendation to mercy, and sentenced to be hanged. The sole ground of appeal imputed error to the presiding judge in his refusal to grant a motion for continuance, and in proceeding with the trial. In his order settling the case, the presiding judge stated his reasons for refusing the motion as follows:
" D'
The court held that there was no abuse of discretion, and affirmed the order of the circuit court.
The case of Cutter v. Mallard Lumber Co., 99 S.C. 231 83 S.E. 595, 597, is directly in point, and concludes the issue here. In that case the appeal to this court was from an order refusing a motion made by the defense for a continuance, such motion being as follows: ...
To continue reading
Request your trial-
State v. Woods
... ... The ... trial Judge had the advantage of observing and hearing the ... juror and witnesses testify, and we would not undertake to ... say that he did not reach a proper conclusion. Following the ... filing of the opinion of this Court in State v. Kennedy, 177 ... S.C. 195, 181 S.E. 35, 40, attorneys for Kennedy filed with ... this Court his petition for order staying remittitur for the ... purpose of allowing a motion to be made in the Circuit Court ... for a new trial on after discovered evidence. The petition ... was granted and argument on ... ...
- Maxwell v. Epton
-
State v. Jones
... ... had, and the appellant made no satisfactory showing that such ... time was not ample for the preparation of his case. We ... approve the action of the trial judge in refusing a ... continuance. See State v. Crosby, 160 S.C. 301, 158 ... S.E. 685; State v. Kennedy, 177 S.C. 195, 181 S.E ... Error ... is also assigned to the trial court in not sustaining ... appellant's objection to certain testimony of the ... State's witness, H. D. Long, and especially in permitting ... him to answer the following question: "What [182 S.C. 5] ... ...
-
State v. Emory
... ... Let the affidavits upon ... which the motion was heard be filed along with this ... We ... think his honor, Judge Sease, correctly ruled on the motion ... In this connection we call attention to the per curiam ... opinion by this court in the recent case of State v. Kennedy, ... and authorities therein cited, reported in 177 S.C. 195, 181 ... The ... question raised under subdivision A of this exception must be ... answered against appellant's contention. In our opinion, ... his honor, Judge Sease, was justified under the showing made ... ...