State v. Augustine , 131 S.C. 21 ( 1925 )

February 25, 1925. The opinion of the Court was delivered by "The defendant, Henry R. Augustine, was tried in the County Court for Greenwood County at the May term, 1923, on a charge of assault and battery with intent to kill. He was convicted by a jury and given a sentence of 24 months, 18 months of which were suspended during good behavior upon the payment of a fine of $200.00.

During the same term of Court a motion was made for a new trial based upon after-discovered or newly-discovered evidence, and the affidavit of A.A. Duncan was offered in substantiation of this motion. The motion was overruled.

"The defendant gave notice of intention to appeal to the General Sessions Court for Greenwood County, and afterwards, with the consent and knowledge and acquiescence of the County Solicitor and the County Judge, he was allowed to present his case before the Pardon Board at its July meeting, 1923. The petition for clemency was recommended upon certain conditions by the County Judge and the County Solicitor. Neither the defendant nor his attorney was notified of the decision of the said Board. On the 3d day of January, 1924, the defendant, Henry R. Augustine, through his attorney, again appealed to His Excellency, the Governor, for executive clemency, which was declined.

"On the 5th day of March, 1924, the County Solicitor served the defendant's attorney with notice of intention to make a motion at the March term of the said Court to dismiss the appeal from the County Court in this matter. The said motion was not made until the May term of Court, because the attorney for the defendant was in attendance upon the session of the General Assembly of the State of South Carolina during the said term. Upon the motion made at the May term to dismiss the appeal, the defendant, through his attorney, made a motion for a new trial upon newly-discovered evidence, which was supported by affidavits of the defendant, his attorney, one F.H. Suits, and A.A. Duncan. The motion of the defendant was overruled by order of June 20, 1924, because ``it is the opinion of the Court that the defendant has not made a sufficient showing to entitle him to a new trial.' Whereupon the defendant gave notice of intention to appeal to the General Sessions Court of the County.

"The appeal was heard by Hon. S.W.G. Shipp at the September term of the Sessions Court, which resulted in the order set out in the ``case'. The defendant then gave notice of appeal to the Supreme Court of the State, alleging errors as shown in the exceptions."

The exceptions, seven in number, allege error.

The Courts do not look with favor upon motions of this character, as there must be an end to litigation in any case; however, there are cases that motions of this character should be entertained and granted in order that wrongs done may be remedied. The rule is well settled that a motion for a new trial on the ground of after-discovered evidence is addressed to the sound discretion of the trial Court and will not be reviewed unless there is abuse of that discretion or that the decision was influenced by an error of law. This is made clear in Statev. Jones, 89 S.C. 51; 71 S.E., 291; Ann. Cas. 1912d 1298. Also, Miller v. A.C.L., 95 S.C. 471;79 S.E., 645. State v. Bethune, 93 S.C. 195; 75 S.E., 281. Statev. Hawkins, 121 S.C. 290; 114 S.E., 538; 27 A.L.R., 1083. State v. Jackson, 122 S.C. 493; 115 S.E., 750.

The exceptions cannot be sustained as we see no error as complained of.

The exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES FRASER and MARION and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE T.P. COTHRAN. did not participate.