State v. Thompson

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] November 2, 1922. The opinion of the Court en banc was delivered by The defendant, William Thompson, was on the 9th of May, 1921, indicted in the Court of General Sessions for Greenville County, tried, and convicted of murder of one George Burroughs, who had been killed on May 6, 1921. On the same day he was tried, the defendant was sentenced to be electrocuted on a later day in that month. His attorney, appointed by the Court, served a notice of intention to appeal, which operated to stay the execution of sentence pending the appeal. The notice of appeal was never perfected, but was abandoned, and the jurisdiction of the Supreme Court never attached thereon. Supreme Court Rule 23 (90 S.E., xi); State v. Johnson, 52 S.C. 505;30 S.E. 592. Thereafter, on May 5, 1922 defendant served notice of a motion to be made, and which was made in open Court before Hon. T.J. Mauldin, who had been presiding Judge at the term of Court in May, 1921, and was then the presiding Judge over a subsequent term of the Court, for a new trial on the ground that the defendant had not received a fair and impartial trial when convicted, as required by our Constitution and laws. The motion was heard on May 10, 1922.

On the hearing of this motion the defendant contended that he had been rushed to trial, without any opportunity to see his friends or to engage counsel, or to in any way prepare for his defense, in consequence of the courtroom being crowded by a multitude hostile to him, whose exhibition of hostility was calculated to, and did, overawe the jury, and that because of the presence of this crowd, and of verbal the Court to defend the defendant, such counsel did not threats, which had come to the ears of counsel appointed by demand the time to which defendant was entitled for preparation of his defense, for fear that the defendant would be dealt with by violence, and defendant was thus forced to trial with his counsel hopelessly unprepared and not having any proper knowledge of his defense. The motion was based on affidavits tending to show a trial under such circumstances, and was heard by the Judge upon such affidavits and others contradictory thereto. After considering them, along with his own recollection of the trial before him, the trial Judge held:

"That the proceedings, while apparently true to all formal requirements, were void of vitalizing justice." State v.Weldon, 91 S.C. 29, 35-41; 74 S.E., 43 (39 L.R.A. [N. S.], 667; Ann. Cas., 1913E, 801); Frank v. Mangum,237 U.S. 332, 335; 35 Sup. Ct., 582; 59 L.Ed., 969; Statev. Gossett, 117 S.C. 76; 108 S.E., 290; 16 A.L.R., 1299.

He says:

"Many of the developments set forth in the accompanying affidavits are now for the first time revealed to me, and I am persuaded that the able and zealous solicitor was not cognizant, at the time of the trial, of many facts set forth in the affidavits here. * * * The prisoner was sent to trial upon the charge of murder within less than four hours after his arraignment, with counsel appointed by the Court and with time all inadequate for the preparation of his case, * * * especially under circumstances, when feeling in the community naturally was high, and material witnesses were doubtless reluctant, through timidity or through fear."

And thereupon he granted the defendant a new trial. From the order granting the new trial the State appeals on the grounds: (1) That the Circuit Court had no jurisdiction to hear, entertain, or grant the motion; (2) that there was not sufficient evidence to support the findings of fact and order based thereon; (3) that the facts found were insufficient to warrant a new trial; (4) that there was no showing that the defendant was deprived of any additional evidence, or otherwise prejudiced by the failure of his attorney to demand three days' view of the indictment before trial; (5) that there was no evidence before the Court that defendant did not secure a fair and impartial trial; and (6) that there was no evidence or showing on which to base a conclusion that the verdict would have been different if the three days' view of indictment had been claimed.

In abandoning the appeal noticed in May, 1921, and in making the motion for a new trial in May, 1922, the defendant's counsel relied upon the decision in State v. Weldon,89 S.C. 308, 310-312; 71 S.E., 828, and 91 S.C. 29,35-41; 74 S.E., 43; 39 L.R.A. (N.S.), 667; Ann. Cas., 1913E, 801, as authorizing the Circuit Court to entertain jurisdiction of the motion, and the Circuit Judge granted the motion under the authority of that case. The Attorney General, for the State, has obtained the leave of the Court to review these decisions.

In the Weldon Case 89 S.C. 308, 310-312;71 S.E., 828, the Supreme Court dismissed an appeal on the ground that the questions made, not having been passed upon by the Circuit Court, could not be considered or reviewed on appeal, but in view of the grave issues involved in a capital case, in favorem vitae, dismissed the appeal without prejudice to any right the defendant might have to move before the Circuit Court for a new trial. Thereupon the defendants moved at a subsequent term of the Circuit Court for a new trial on two grounds: (1) Newly discovered evidence; and (2) that defendants had been convicted and sentenced to death, under circumstances very similar to those alleged in the case at bar, without a fair and impartial trial. The Circuit Court refused the motion on both grounds. The defendants appealed. 91 S.C. 29, 35-41; 74 S.E., 43; 39 L.R.A. (N.S.), 667; Ann. Cas., 1913E, 801. The Supreme Court held that the defendants had not established a right to a new trial on the first ground, but were entitled to a new trial on the second ground.

The defendant's counsel contends that, as the abandonment of his appeal, and procedure by motion in the Circuit Court for a new trial, was induced by reliance on the decision in State v. Weldon, supra, if that decision is overruled, it should be without prejudice to the consideration of the motion in this case on its merits, citing State v. Bell,136 N.C. 674; 49 S.E. 163.

"When a principle is once adopted and declared by the Courts, the people have a right to regard it as just declaration of the law, and to regulate their actions * * * thereby. * * * There should never be a disturbance of the same, except upon urgent reasons and a clear manifestation of error." Lillard v. Melton, 103 S.C. 25.

The Weldon Case (89 S.C. 308, 310-312; 71 S.E. 828;91 S.C. 29, 35-45; 74 S.E., 43; 39 L.R.A. [N.S.], 667; Ann. Cas., 1913E, 801) stands alone, in so far as it authorizes a motion to be made for a new trial at a subsequent term of Court, on the ground of facts occurring at the trial or circumstances immediately connected therewith, which were known to the party moving or his counsel during the trial. Hence this Court is bound to consider whether such conclusion, there reached, is the law to be now followed in practice. State v. Williams, 13 S.C. 546; 554. See, also,State v. Hooper, 2 Bailey (S.C.), 37, overruling State v.Petty, Harp. (S.C.), 59.

There is no doubt that the Circuit Court, while it retained jurisdiction of the cause, could grant a new trial upon a proper showing being made therefore. Criminal Code, § 99;State v. Bailey, 1 S.C. 1; Wharton, Crim. Proc., § 1728.

"In this country the uniform and unquestioned practice, down to a comparatively late period, has been to extend to criminal cases, so far as the revision of verdicts is concerned, the same principles which have been established in civil action. * * * whenever it appears there was * * * injustice in the procedure." 3 Wharton, Crim. Proc., § 1728.

The same act (1868, 14 St. at Large, 136) gives jurisdiction to the Circuit Courts to hear motions for new trials in both civil and criminal cases. Under our judicial system (Const. Art 5, § 14) the presiding Judge in the Circuit Court loses jurisdiction with the adjournment of the term, and a succeeding Circuit Judge at a subsequent term has no power to review or reverse the action of the presiding Judge at a prior term. Warren v. Simon, 16 S.C. 362;State v. Price, 35 S.C. 273; 14 S.E., 490. Hence Code Civ. Proc., §§ 324, 325, provides that motions for new trials on the minutes of the Court, and on case or exceptions, must be heard at the same term at which the trial is had, unless, in the case of a motion on exceptions, the trial Judge directs them to be heard at a later date. Wherever the motion is based on facts occurring at the trial, as stated in the affidavits in this case, or facts and circumstances immediately connected with the trial, the motion must be made before the adjournment of the term at which the trial was had, or before sentence or judgment, or upon a case made up and settled by the Judge who tried the case. State v.David, 14 S.C. 431; Clawson v. Hutchinson, 14 S.C. 520. So illness of counsel, which would have been apparent to the trial Judge, has been held not to be available as ground for a motion for a new trial after the term. State v. Mack,77 S.C. 388; 57 S.E., 1107.

In State v. Williams, 108 S.C. 295; 93 S.E., 1006, the Circuit Court was held to have jurisdiction after the expiration of term to hear a motion for a new trial upon newly discovered evidence, and the circumstance that the defendant's decision to enter the plea of guilty was influenced by the surrounding circumstances attendant on the trial and there known to him was not the basis for the motion. So inState v. Foster, 80 S.C. 348; 61 S.E., 564, an appeal was suspended to allow the defendant appellant to move on Circuit for a new trial on after-discovered evidence tending to show that a juror sat in the case with a determination before the trial commenced to convict, regardless of and without hearing the evidence.

The motion in the case at bar is not to be governed by the rule as to jurisdiction in motions for new trial on the ground of newly discovered evidence, and the rule in that class of cases need not be here considered. The facts on which this motion is based are stated by defendant's counsel to have come to his ears, and to have been known to him, and to have affected his conduct, during and at the trial. In order to afford the basis for a new trial they should have been then called to the attention of the Court. State v.Jones, 89 S.C. 41; 71 S.E., 291, Ann. Cas., 1912d 1298;Frank v. State, 142 Ga. 741; 83 S.E., 645, L.R.A., 1915D, 817.

For the reasons above stated the decision in State v.Weldon, 91 S.C. 29, 35-41; 74 S.E., 43; 39 L.R.A. (N.S.). 667; Ann. Cas., 1913E, 801, is overruled, in so far as it authorizes a motion for a new trial to be made at a subsequent term of Court, on the ground of facts occurring at the trial, or circumstances immediately connected therewith, which were known to the party moving, or his counsel, during the trial, and in the future all such motions must be presented to the trial Judge before the expiration of the term at which the trial is had.

The second and fifth exceptions are overruled, for the reason that affidavits submitted were sufficient to support the findings of facts by the trial Judge. The third exception is overruled, as the findings of fact were sufficient to authorize the Court to grant a new trial. Statev. Weldon, 91 S.C. 29, 35-41; 74 S.E., 43; 39 L.R.A. (N.S.), 667; Ann. Cas., 1913E, 801; State v. Gossett, 117 S.C. 76;108 S.E., 290; 16 A.L.R., 1299; Frank v.Mangum, 237 U.S. 332; 35 Sup. Ct., 582; 59 L.Ed., 969. The fourth and sixth exceptions are overruled, because the circumstances surrounding the trial, and found by the trial Judge to have then existed, show why the demand was not made, and cause a presumption that the haste with which the trial was had was prejudicial to the defendant and prevented a fair and impartial trial.

The first exception is well taken by the counsel for the State, but the Judge who heard the motion would have had jurisdiction during the term at which the cause was tried, and the defendant, by asking him to hear the motion at a later term, as was done in the Weldon Case, is estopped to question the jurisdiction at that term. Stroudv. U.S., 251 U.S. 15, 18; 40 Sup. Ct., 50; 64 L.Ed., 103.

The issue to the defendant is life and death. The trial Judge has found that he has not received a fair and impartial trial. The defendant was induced, by reliance on the decision in State v. Weldon, supra, to pursue the wrong remedy. The Court to which he applied, in reliance on the decision in State v. Weldon, supra, to pursue sidered the motion on its merits. While no constitutional rights can be based upon error in prior decisions (Dunbar v.City of New York, 251 U.S. 516, 518; 40 Sup. Ct., 250;64 L.Ed., 384), yet under the circumstances of this case, as in Thomas v. Poole, 19 S.C. 323, in favorem vitae, it is more in accord with our constitutional system for the administration of justice to overlook the want of jurisdiction to hear the motion at the term when made, and allow the order granting the defendant a new trial to stand, and thus afford the defendant the fair and impartial trial to which he was entitled, than to refuse it, and leave to him as his only remedy an application for mercy to the executive department (who may only pardon), not on the ground that the judgment against him was wrong on the merits, but that the Courts have failed in a capital case to discharge their proper functions with due regard to the constitutional safeguards in the administration of justice. State v. McNinch, 12 S.C. 96;State v. Washington, 13 S.C. 455; State v. Green,48 S.C. 147; 26 S.E., 234.

If a judgment in a civil action is obtained in consequence of excusable neglect on a defendant's part, the Court would be allowed, under Code Civ. Proc., § 225, to grant him relief. While this provision of the Code has no application to criminal proceedings, yet in a criminal case, where the circumstances surrounding the trial show that the defendant and his counsel were excusable for their neglect in failing to present a motion for a new trial during the trial term (which motion, if then made, would have been granted), and the motion is made by the defendant, and granted, at a later term, when the Court had lost jurisdiction to consider it, the Supreme Court, under the peculiar circumstances shown in this case, and in favorem vitae, may well allow the order granting the new trial to stand.

The order appealed from is affirmed.

MR. CHIEF JUSTICE EUGENE B. GARY, MR. JUSTICES COTHRAN and MARION, and WILSON, DeVORE, and FRANK B. GARY, Circuit Judges, concur.

MR. JUSTICE FRASER: At the conference, I thought that there should be a new trial, because the appellant had been misled by State v. Weldon. A further consideration of the Weldon Case convinces me that I was wrong. There is no doubt from our former decisions that a Judge of a Circuit Court cannot grant a new trial in a case heard at a previous term of the Court, for error committed on the trial of the case. This is true, even though the trial Judge has himself presided at the former trial. In the Weldon Case there was an appeal to the Supreme Court. The Supreme Court sent it back to the Circuit Court to have the questions raised passed upon. This it had the right to do, and the Circuit Court then was empowered to pass upon the motion. That was not done in this case.

This is a question of jurisdiction. No doctrine "infavorem vitae" can give jurisdiction. For these reasons, I concur with Mr. Justice Watts.

MESSRS. MEMMINGER, SEASE, RICE, and PEURIFOY, Circuit Judges, concur in the written opinion of Mr. Justice Fraser, and also in the opinion of Mr. Justice Watts to the same effect.