State v. Turner

• Decision Date: 25 July 1893
• Docket Number: 3,213.
• Citation: State v. Turner, 39 S. C. 414, 17 S. E. 888 (S.C. 1893)
• Parties: STATE v. TURNER.
• Court: South Carolina Supreme Court

17 S.E. 888

39 S.C. 414

STATE v. TURNER.

No. 3,213.

Supreme Court of South Carolina

July 25, 1893

Appeal from general sessions circuit court of Spartanburg county; J J. Norton, Judge.

George S. Turner was convicted of murder, and moves for leave to apply to the trial court for a new trial. Motion denied.

Bomar & Simpson, Nicholls & Moore, Melton & Melton, Johnstone & Cromer, and Duncan & Sanders, for appellant.

O. L Schumpert and Stanyarne Wilson, for the State.

POPE J.

George S. Turner was convicted of the crime of murder, and sentenced to death. From this judgment he appealed to this court, when the judgment below was affirmed, and the cause remanded to the circuit court, for the purpose of a new day being fixed for his execution. 36 S.C. 534, 15 S.E. Rep. 602. When the prisoner was brought into the circuit court for this purpose he interposed a motion for a new trial upon the ground of after-discovered evidence. The circuit judge declined to entertain the motion, for want of jurisdiction. An appeal was taken from this order of the circuit judge. This court sustained the conclusion of the circuit judge, but, in tenderness for human life, allowed the appellant to move before us on the 27th June last for leave to apply to the circuit court for a new trial upon the ground of after-discovered evidence. This course was adopted by the appellant, and it now becomes our duty to announce our conclusion. All that this court ever requires in such cases is that the proofs tendered shall prima facie support the demand. The permission to make this motion is an extraordinary advance from the earlier days of the commonwealth. In State v. Harding, 2 Bay, 267 decided in the year 1800, the court of last resort in this state unanimously decided that one convicted of a capital offense was not entitled to a new trial upon after-discovered evidence, using this language: "That the discovery of new evidence after trial, which is so frequently made a ground on motions for new trials, was not a good ground for a new trial, because on a sufficient affidavit of the absence of witnesses in criminal as well as in civil cases, the court will always postpone the trial, in order to give the prisoner an opportunity to procure their attendance, and be better prepared at the next court, and that it might have a very mischievous tendency to establish a precedent of this kind, after a trial and conviction, and after all the evidence of the state had been fully disclosed, as it was easy to foresee that a man whose life was in danger would in every case, even to gain time, make use of a pretext of this kind to create delay, but more especially, by the assistance of confederates, he might be enabled to procure unprincipled men to be witnesses, to contradict the evidence on the part of the state, and thereby defeat the ends of justice." But it seems since those early days the rigor of the law has been so abated that new trials may be granted, even after conviction, upon the ground of after-discovered evidence. State v. David, 14 S.C. 428; State v. Workman, 15 S.C. 540; State v. Chavis, 34 S.C. 132, 13 S.E. Rep. 317; State v. Price, 35 S.C. 273, 14 S.E. Rep. 490. In each of these cases thus cited the motion was made before the supreme court had passed upon the judgment of conviction in the circuit court. This distinction in our decisions, together with other matters relating to this subject, will be presented in the judgment of this court (not yet filed) prepared by Mr. Justice McGowan in the appeal from Judge Norton's refusal to entertain this motion. 17 S.E. Rep. 885. This court, in a carefully prepared opinion delivered by Chief Justice McIver, as found in Sams v. Hoover, 33 S.C. 401, 12 S.E. Rep. 8, has declared: "To justify the granting of a motion for a new trial upon the ground of after-discovered evidence, the moving party must establish, to the satisfaction of the court before which the motion is made, at least three facts: (1) That the proposed new evidence was discovered after the former trial; (2) that it could not, by the use of due diligence, have been discovered in time to be offered at the former trial; (3) that it is material. State v. Workman, supra; Durant v. Philpot, 16 S.C. 116." In the case at bar the moving party has met, at least by a prima facie showing, the first and second requirements. What is the status of his showing, prima facie, as to the materiality of the after-discovered evidence? We have carefully reviewed the entire case presented at the hearing of the appeal on its merits, and have most carefully studied the affidavits of the proposed witnesses. Candor compels us to admit that we are satisfied that this proposed testimony is not material, and does not warrant that the motion should be granted. Much of the proposed testimony relates to the condition of heart of the deceased to the prisoner. There was no effort at concealment of this fact at the former hearing. It was proved by the state's own witnesses that Edward H. Finger had drawn his double-barreled shotgun upon the prisoner on the 14th or 15th November 1889, at the time and on the occasion when the prisoner sought, in the open day, in the home of Mrs. Finger and her children, to visit the daughter whose ruin he had accomplished, and a knowledge of which ruin had...