State v. Sineath

January 23, 1923. The opinion of the Court was delivered by The appellant was indicted for uttering a false check, and was convicted and sentenced at the January, 1922, term of the Court of General Sessions for Richland county. On June 23, 1922, a motion for a new trial upon after-discovered evidence was refused by Hon. W.H. Townsend, Circuit Judge, on the ground that the alleged after-discovered evidence was merely cumulative. From the order refusing this motion, the defendant appeals upon two exceptions.

The first exception assigns error in the refusal or failure of Judge Townsend to have a witness — who had declined to make an affidavit, but who was present under subpoena — sworn and examined on the defendant's behalf at the hearing of the motion for new trial. In support of his contention that he was thereby denied "the equal protection of the laws" and deprived of his constitutional "rights and privileges," the appellant suggests no reason and cites no authority. As has been repeatedly held, "this motion was addressed to the discretion of the Circuit Judge, and unless his discretion was abused or some rule of law was violated," this Court has no authority to interfere.State v. Workman, 15 S.C. 547; State v. Jones, 49 S.C. 330;26 S.E., 652; State v. Anderson, 85 S.C. 232; 67 S.E., 237; 137 Am. St. Rep., 887. We know of no rule of substantive law or of procedure requiring that a Circuit Judge shall have witnesses sworn and examined at such a hearing for the purpose of discovering evidence that might prove of benefit to the moving party. Conceding that circumstances might arise under which, upon a proper showing, the refusal of the Circuit Judge to examine a recalcitrant, after-discovered witness, might amount to an abuse of discretion, in the circumstances and upon the showing made in the case at bar we think it clearly appears that there was no abuse of discretion. The nature and purport of the evidence sought to be elicited from this witness were definitely indicated in the defendant's affidavit, and in that form, most favorably stated from defendant's standpoint, the evidence appears to have been duly considered by the Circuit Judge.

The second exception imputes error to the Circuit Judge in holding that the alleged after-discovered evidence was merely cumulative. A careful examination of the testimony relied upon discloses that there was ample basis for the Judge's view, and his conclusion cannot be pronounced error of law.

The exceptions are overruled, and the order of the Circuit Judge is affirmed.