State v. Way

• Decision Date: 02 January 1894
• Citation: State v. Way, 40 S. C. 294, 18 S. E. 676 (S.C. 1894)
• Parties: STATE. v. WAY.
• Court: South Carolina Supreme Court

18 S.E. 676

40 S.C. 294

STATE.

v.WAY.

Supreme Court of South Carolina.

Jan. 2, 1894.

Homicide—New Trial after Appeal—Leave of Appellate Court.

A conviction of murder having been affirmed on appeal, and the case remanded, with an order to fix a day for execution, defendant moved for a new trial on the ground of newly-discovered evidence. The court declined to hear the motion for want of jurisdiction without leave of the appellate court, and, from this ruling, defendant appealed. Held that, though the appellate court may have lost jurisdiction of the case by the remittitur, it regained jurisdiction by the second appeal, so as to enable it to suspend the appeal, and grant to the trial court leave to hear the motion.

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

Indictment of Jefferson M. Way for murder. After defendant's conviction was affirmed, (17 S. E. 39,) he moved for a new trial on the ground of newly-discovered evidence. From an order dismissing the motion, defendant appealed, and now moves to suspend the appeal, and for leave to renew the motion for new trial in the trial court Motion granted.

Glaze & Herbert, Raysor & Summers, and S. P. Mayfield, for appellant.

W. St J. Jervey, for the State.

McIVER, C. J. The defendant, after having been tried and convicted of the murder of Elliott W. Whetstone, at the May term of the court of general sessions for Orangeburg county in the year 1892, duly appealed to this court. His appeal was heard during the November term for 1892 of this court, and on the 23d of February, 1893, the judgment of this court was rendered, affirming the judgment of the circuit court, and remanding the case to the circuit court for the purpose of having a new day assigned for the execution of the sentence originally imposed. 17 S. E. 39. Prior to the May term of the court of sessions for Orangeburg county in the year 1893, the defendant gave notice, based on accompanying affidavits, of a motion to that court for a new trial upon the ground of subsequently-discovered evidence. For some reason not stated, the hearing of this motion was postponed until the next succeeding term, —September, 1893, —and a new day, to wit, 17th of November, 1893, was assigned for the execution of the original sentence. When the motion for a new trial came up before his honor, Judge Norton, at the September term, 1893, he declined to hear the motion, upon the ground "that the circuit court has no jurisdiction to hear a motion for a new trial on the ground of after-discovered evidence, after an appeal to the supreme court and an affirmance of the judgment appealed from, and the case has been remanded for the purpose of assigning a new day for the execution of the sentence, and such new day has been assigned by the circuit court;" referring to the recent case of State v. Turner, heard by the same judge, in which he had given his grounds for the conclusion adopted by him, saying that he was unable to distinguish this case from that of Turner. From this judgment the defendant appeals, upon the several grounds set out in the record, which really make the single question whether the circuit judge erred in declining to take jurisdiction of the motion.

Pending this appeal, a motion has been made to this court to suspend this appeal for the purpose of enabling the appellant to apply to the circuit court for a new trial upon the ground of after-discovered evidence; and this is the only matter which we propose now to decide, though it will be necessary to discuss, incidentally, the question whether the circuit judge erred in declining to take jurisdiction of the motion heard by him at September term, 1893. If this case cannot be distinguished from Turner's Case, then it is clear that there was no error on the part of the circuit judge. It will be observed that the case of State v. Turner has been several times before this court. 36 S. C. 534, 608, 15 S. E. 602, and 16 S. E. 687; Id., 17 S. E. 752, 885. From a careful examination of the several phases of that case, we are unable to discover any material difference between that case and the one now under consideration, so far as the question which we are now called upon to determine...