State v. Marks

• Decision Date: 04 February 1905
• Citation: 50 S.E. 14,70 S.C. 448
• Parties: STATE v. MARKS et al.
• Court: South Carolina Supreme Court

50 S.E. 14

70 S.C. 448

STATE v. MARKS et al.

Supreme Court of South Carolina

February 4, 1905

Appeal from General Sessions Circuit Court of Darlington County Aldrich, Judge.

Sam Marks and Moses Ham were convicted of murder, and appeal. Affirmed as to Marks, and reversed as to Ham.

Gary A. J., dissenting in part.

George W. Brown, for appellants. J. M. Johnson, Sol., for the State.

JONES J.

This is a motion to suspend the appeal in this case in order that a motion for a new trial on after-discovered evidence may be made in the circuit court, and to this end it is further moved that this court appoint a referee to take the testimony of W. D. Blackman, who declines to make an affidavit.

While we do not doubt that this court has the power to appoint a referee to take the testimony of W. D. Blackman in these proceedings, we think it would be useless to exercise the power in this case, since the testimony, if procured, as desired by appellants, would not contribute anything in making out the prima facie showing necessary to cause a suspension of the appeal for the purpose named. It will be noticed that the testimony of W. D. Blackman would only be made available on a subsequent trial to impeach the testimony of Wiley McKissick, a witness examined on behalf of the state (in the event he should be again used by the state as a witness), by showing that he made statements inconsistent with his testimony on the stand. Whether the deceased had a knife in his hand during the difficulty with the defendants was strenuously contested on the trial, and to reopen that matter, merely because some one has been discovered who has heard one of the state's witnesses make statements contradictory of his testimony on the trial, would establish a dangerous precedent. In denying a motion made on a similar ground in State v. Workman, 38 S.C. 550, 16 S.E. 770, the court said: "If such a ground be held sufficient to sustain a motion like this, it would be opening the door to fraud and perjury, and cause interminable delay in the trial of causes."

For these reasons, we think the motion to suspend appeal should be refused, and that the court should proceed to consider the appeal which has been heard, and is ready for determination upon refusal of this motion, and it is so adjudged.

POPE, C.J., and WOODS, J., concur.

GARY A. J. (dissenting).

This is a motion, upon affidavits hereinafter mentioned, for an order: "(1) Suspending the appeal in the above-stated case; (2) appointing a referee to take the affidavit of W. D. Blackman, as disclosed in this motion; (3) allowing the defendants to make a motion at the next term of the court of general sessions for Darlington county for an order granting a new trial in the said case on after-discovered evidence."

The affidavit of Mr. J. R. Coggeshall is as follows: "Personally appeared before me, J. R. Coggeshall, who, being duly sworn, says that a few days after the adjournment of the September term of the court of general sessions for Darlington county, at which Sam Marks and Mose Ham were tried for murder, deponent met W. D. Blackman on the public square of the town of Darlington, S. C.; that the said W. D. Blackman mentioned the trial of Marks and Ham, and said, in substance, that he supposed it was all over with, but that he was afraid the witnesses did not tell all about that knife; that he had heard Wiley McKissick talking with Raines at his house only a short time after Langston was killed, and that McKissick said they could say what they pleased about the knife, but that he was satisfied that Langston must have had his knife in his hand when he was killed, as only a short time afterwards he picked the knife up 'about the hole,' and shut it up and put it in his pocket. Deponent, having heard that it was denied on the witness stand that Langston had a knife, mentioned what he had heard to Geo. W. Brown, and, at his request, asked Mr. Blackman if he would make an affidavit as to what he heard McKissick say with regard to the knife picked up after Langston was killed, and Mr. Blackman said he preferred not making an affidavit, but would see Mr. Brown about the matter."

The affidavit of Mr. George W. Brown, attorney for the defendants, sets forth the fact that the testimony was not discovered before the trial, and could not have been discovered by the use of due diligence, as there were no circumstances putting the defendants or their attorney upon inquiry; also that, when requested by him to make an affidavit, the said Blackman refused to do so.

Section 75 of the Criminal Code of 1902 provides that "the practice and proceedings in cases of appeal from the courts of general sessions shall conform to the practice and proceedings in cases of appeal from the courts of common pleas." Section 402, subd. 7, of the Code of Procedure is as follows: ""When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court, or a judge thereof, may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to...