State v. Marks , 70 S.C. 448 ( 1905 )

February 4, 1905. The opinion of the Court on the motion to suspend appeal and for leave to make motion below for new trial on after-discovered evidence was delivered by This is a motion to suspend the appeal in this case in order that a motion for a new trial on after-discovered evidence may be made in the Circuit Court, and to this end, it is further moved that this Court appoint a referee to take the testimony of W.D. Blackman, who declines to make an affidavit.

While we do not doubt that this Court has the power to appoint a referee to take the testimony of W.D. Blackman in these proceedings, we think it would be useless to exercise the power in this case, since the testimony, if procured as desired by appellants, would not contribute anything in making out the prima facie showing necessary to cause a suspension of the appeal for the purpose named. It will be noticed that the testimony of W. D. Blackman would only be made available on a subsequent trial to impeach the testimony of Wylie McKissick, a witness examined on behalf of the State (in the event he should be again used by the State as a witness), by showing that he made statements inconsistent with his testimony on the stand. Whether the deceased had a knife in his hand during the difficulty with the defendants, was strenuously contested on the trial, and to reopen that matter, merely because some one has been discovered who has heard one of the State's witnesses make statements contradictory of his testimony on the trial, would establish a dangerous precedent. In denying a motion made on a similar ground, in State v. Workman, 38 S.C. 550, 16 S.E., 770, the Court said: "If such a ground be held sufficient to sustain a motion like this, it would be opening the door to fraud and perjury, and cause interminable delay in the trial of causes."

For these reasons, we think the motion to suspend appeal should be refused, and that the Court should proceed to consider the appeal which has been heard, and is ready for determination upon refusal of this motion, and it is so adjudged.

MESSRS. CHIEF JUSTICE POPE and JUSTICE WOODSconcur.

DISSENTING OPINION.