State v. Pope

• Decision Date: 30 April 1907
• Court: South Carolina Supreme Court
• Parties: STATE. v. POPE.

58 S.E. 815

(78 s.c. 264)

STATE.

v.POPE.

Supreme Court of South Carolina.

April Term, 1907.

On Rehearing, Sept. 27, 1907.

1. Criminal Law—Rulings on Motions fob Continuances—Review.

Motions for continuance in a criminal case for the absence of witnesses are addressed to the discretion of the trial court, and its rulings will not be disturbed, unless the discretion has been abused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3045.]

2. Same—Absence of Witnesses—Materiality of Testimony.

Circuit court rule 27 declares that no motion for a continuance for the absence of witnesses shall be granted without the oath of a party or his counsel that the witness is material. On a motion for a continuance, accused in his affidavit averred that it was impossible for him to state what an absent witness would testify to and his counsel made no affidavit. Meld, that the court properly denied the application, on the ground that the materiality of the testimony was not shown.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1355.]

3. Witnesses—Right of Accused to Compulsory Process fob Witnesses—Constitutional Provisions.

Const, art. 1, § 18, giving to accused compulsory process for witnesses in his favor, is sufficiently complied with where accused was awarded compulsory process, under which a witness was bound over under recognizance to appear, and where a bench warrant was subsequently issued for the arrest of the witness.

4. Same.

Const, art. 1, § 18. giving to accused compulsory process for witnesses "in his favor, " does not require the court to issue compulsory process for any one the accused may designate as a witness, but there must be a showing tha the person wanted is a witness in favor of accused, and that his testimony will be material.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, § 5.]

Pope, C. J., and Gary, A. J., dissenting.

Appeal from General Sessions Circuit Court of Hampton County; Geo. W. Gage, Judge.

J. Henry Pope, Jr., was convicted of manslaughter, and he appeals. Affirmed.

John S. Reynolds and W. S. Smith, for appellant.

Solicitor James E. Davis and W.S. Tillinghast, for the State.

JONES, J. At the October term, 1906, of the court of general sessions for Hampton county, the appellant was adjudged guilty of manslaughter and sentenced. At the call of the case, a motion for continuance of the term was made in behalf of the defendant, upon the ground that a material witness, Dr. M. L. Peeples, was absent after having been duly bound over according to law. The witnesr. was bound over on the 22d of October, the day on which the term began, and was in attendance on the court for some time, but left after having been warned not to leave by defendant's attorney. It does not appear precisely when the witness left, or when defendant's attorneys were informed that he intended to leave or had left, but on October 25th Judge Gage, on the application of defendant's attorneys, issued a bench warrant directing the sheriff to arrest the witness and bring him to the bar of the court. The record fails to disclose the cause of the absence of the witness, or the reason why the sheriff failed to arrest him. After issuing the bench warrant, Judge Gage ordered the trial of the case to proceed over the protest of defendant's counsel; but it does not appear whether the trial was had on the 25th, 26th, or 27th of October. It appears that the court ruled that the solicitor having agreed to accept what the witness would swear to the trial must proceed. The appellant urges two exceptions for reversal: (1) error in refusing a continuance when it appeared that the witness had been regularly bound over as an expert witness; it being impossible for the defendant to put in the shape of an affidavit what the witness would testify to if present. (2) Error in forcing defendant to trial in the absence of said witness who was duly bound over and for whom bench warrant had been issued, but had not been served or return made thereon by the sheriff, thereby depriving defendant of his constitutional right to have compulsory process for obtaining witnesses in his favor. Motions for continuance on account of the absence of witnesses are addressed to the discretion of the trial court, and the court will not interfere unless a clear case of abuse of discretion is shown. State v. Murphy, 48 S. C. 5, 25 S. E. 43; State v. Smith, 56 S. C. 378, 34 S. E. 657. The discretion of the court in this case was not abused nor was it controlled by anyerroneous view of the law. In fact, the court acted in conformity with rule 27 of the circuit court, declaring that no motion for continuance beyond the term on account of the absence of a witness shall be granted without the oath of the party, his counsel, or agent, to the effect (1) that the witness is material; (2) that the motion is not intended for delay, but is made solely because he cannot go safely to trial without such testimony; (3) that he has used due diligence to procure the testimony of the witness, or such other circumstances as will satisfy the court that his motion is not intended for delay; and (4), in addition to the foregoing, the affidavit must set forth what facts he believes the witness, if present, would testify to and the grounds of such belief.

No such affidavit was presented to the court notwithstanding the offer of the solicitor to accept what the witness would swear to. It is stated in the exception that It was Impossible for defendant to state what the expert witness would testify to if present. Matters of fact stated only in an exception cannot be considered by the court; but, if this...