State v. Waring

• Decision Date: 26 January 1918
• Docket Number: 9890.
• Parties: STATE v. WARING.
• Court: South Carolina Supreme Court

95 S.E. 143

109 S.C. 52

STATE v. WARING.

No. 9890.

Supreme Court of South Carolina

January 26, 1918

Appeal from General Sessions Circuit Court of Colleton County; James E. Peurifoy, Judge.

John Waring was convicted of manslaughter, and from an order refusing a continuance and a refusal to release him upon habeas corpus proceedings, he appeals. Ruling on habeas corpus proceedings affirmed, and order refusing a continuance reversed, and new trial ordered.

R. M Jefferies, of Walterboro, for appellant.

Geo Warren, Sol., of Hampton, and Padgett & Moorer, of Walterboro, for the State.

FRASER J.

The appellant was indicted for murder. When the case was called for trial, the appellant made a motion for continuance and supported the motion with the following affidavit:

"Personally appeared John Waring. who being sworn says That he is the defendant in the above-entitled case; that one Susan Jenkins (née Harrison) is a material witness in his defense and without her he could not safely go to trial; that he is informed and believes that the said Susan Jenkins has been properly subp naed to appear to testify in this cause that he is further informed and believes that the said Susan Jenkins is in a critical condition of health, which would render same dangerous to her life for her to be brought to this court to testify, and that this is not intended merely for delay.

Deponent further states that he believes that if the said Susan Jenkins were to appear in court and testify her testimony in the main would be as follows: That she was playing with this deponent the night that John Washington was shot; that John Washington brought on the difficulty leading to the shooting and that this defendant had nothing whatever to do with it; that while playing in the 'ring' she saw deceased come up to defendant and slap him, at the same time cursing violently, and that deceased also slapped her; that defendant pleaded in a quiet manner with deceased to refrain from such conduct and language, whereupon deceased made certain violent threats against this defendant; that she saw in the hands of deceased an open knife, with which deceased threatened to cut defendant; that defendant tried in every way to quiet deceased and to prevent this difficulty; that deceased persevered in his hostile conduct, whereupon others in the room caused both deceased and defendant to leave the room; that as defendant left the room he stated he was going home to avoid any trouble; that very soon after they left the room she heard a pistol fire one time; that she saw the deceased leave the room with a knife open; and that at the time defendant was trying to avoid deceased and to prevent difficulty.

Deponent further states that the ground of his belief that said Susan Jenkins, if present, would testify as above is that he believes said Susan Jenkins to be a truthful woman, and that he knows that the above is what occurred, all of which should have been within the knowledge of the said Susan Jenkins. Duly probated.

A certificate of Deputy Sheriff L. C. Padgett was filed showing that the witness had been duly subp naed to appear in the court."

A physician, Dr. W. B. Ackerman, was examined in open court, and stated that he had made a physical examination of the witness and it would be dangerous for her to come to court. Upon this showing the court ruled:

"The case cannot be continued on this showing. There is nothing before the court to show that this woman would testify to the facts stated here whatever. The statement of the defendant that he believes her to be a truthful woman I do not think is sufficient. I think that before the court would exercise its discretion of forcing the state to admit this testimony, it ought to have as near as possible definite information that the witness, if here, would testify to the facts as stated in the affidavit. Now, the only thing that the court has is the opinion of the defendant at the bar that this is a truthful woman and that if she were here he believes she would testify to the facts, because he knows her to have been there too. It further appears that counsel had the opportunity to examine the witness and to discuss the case with the witness and find out what she knew about the case. Of course, each attorney has to handle his case in his own way. I merely bring to the attention of

counsel that in order to invoke the discretion of the Court counsel must have done all that he could. Now if counsel had talked to this witness and had told the court that she would testify to these facts, then the court would know that the witness would testify to these facts here. But the court has not the testimony of counsel or of anybody who talked with the witness. It appears to the court, so far as the court knows, that nobody has ever talked to this witness and knows what she would testify to. Not even the defendant himself has talked to her. But the defendant says he believes her to be a truthful woman and

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