Opinion
12791
December 31, 1929.
Before ANSEL, J., Greenville, June, 1929. Reversed and remanded.
B.B. Hewitt was convicted on a charge of nonsupport of his wife and minor children, and he appeals.
The order of the lower Court and the affidavits upon which the motion was based follow:
ORDER OF JUDGE ANSELThis is a motion on behalf of the defendant for a new trial, heard by me during the June term of the criminal court, 1929. The defendant was charged with failure to support his wife and minor children dependent on him.
The defendant was not present at the trial, and by this motion alleges he has a good defense, so far as his wife is concerned. In the case of State v. Lancaster, 135 S.C. 412, 133 S.E., 824, 825, the Court holds: "Unfaithfulness on the part of a wife is a good cause for deserting her within the statute defining desertion without good cause." And at page 415 of 135 S.C. 133 S.E., 825, the Court holds as follows: "The Court takes occasion to say that while this defense of adultery would apply so far as the wife is concerned, it would not apply as regards the children and would not affect that part of the prosecution relating to the abandonment and failure to support the children."
That being the law of this State, it is ordered that the motion for a new trial be, and the same is hereby, refused.
AFFIDAVITSPersonally comes H.P. Burbage, who, being duly sworn, says that he is attorney for above-named defendant; that deponent was retained last fall to defend said defendant at preliminary hearing before Magistrate Smith, of Simpsonville; that he secured a change of venue to Magistrate Barry of Fountain Inn: That later a preliminary was held and the case was left in abeyance, so deponent understood; that he spoke to the sessions court solicitor concerning said case and, from information deponent received, he did not believe that the case would be handed to grand jury for consideration; that the first deponent knew of case being heard by grand jury was when he read in daily papers that defendant had been tried in his absence; that deponent never knew that any bill had been handed out, and never knew that sessions court solicitor had transferred case to county court.
That deponent knows of his own knowledge that defendant cannot read and write, which is shown by the fact that he made his mark to his bond for his appearance; that deponent also has been informed by defendant that he does not take any newspaper and never knew that his case was pending in county court; that defendant is a very ignorant man, is somewhat non compos mentis, is sickly, and a very poor man; that, having attended the preliminary hearing, deponent knows that the evidence there showed that, prior to taking out warrant for nonsupport, defendant's wife and defendant's landlord swore out before Judge of Probate lunacy papers, that defendant was confined to jail, but later was discharged and declared sane; that defendant has good reasons to believe that there were improper relations between said landlord and defendant's wife; that later deponent advised defendant to write to his wife and agree to support his children; that said letter was written by defendant's brother and read by deponent and mailed from deponent's office; that deponent knows that defendant has never refused to support his children, but has refused to support his wife since she and said landlord conspired together, threw defendant in jail on lunacy charges, and for giving defendant just reasons to believe that defendant's wife and said landlord were not conducting themselves in a proper manner; that defendant has a just and meritorious defense, and would have been present at this term of court if able to attend, or else his counsel would have been present, had they known that said case was pending against defendant.
H.C. BURBAGE.
Sworn to before me this 3d day July, 1929. Lucyle S. Dargan. (L.S.) Not. Pub. S.C.
Personally comes before me B.B. Hewitt, who, being duly sworn, says that he is the defendant in above-entitled case; that he had never been informed by his attorney or any one else that his case for nonsupport had gone before the grand jury; that he had been advised that his case was being left open or something to this effect; that he was at the preliminary hearing and later came to Greenville to see his attorney and the latter told him that he would attend to his case for him, that deponent need not worry, etc.; that he did not see his name published in any paper, since deponent does not take any paper, cannot read and write, only knows hard work; that he never failed to support his wife and children until he had been locked up in Greenville County jail on charge of lunacy, and after he found out that Mr. Lyons was the one who had him arrested; that Mr. Lyons was deponent's landlord; that he found out that Lyons and deponent's wife were not living exactly right; that he believes that they tried to get rid of him; failing in this, deponent's wife took warrant out for deponent for nonsupport; that, after deponent decided that his wife had not done the right thing, he swore he would never support a woman who had proven unfaithful to him, but decided he would support his four children, provided he could get possession of them; that he wrote his wife a letter for the children, but she refused to give them up; that the attached letter speaks for itself.
Deponent further deposes and says that he has a good defense for failing to support his wife and children, although he is willing and more than anxious to support his children provided he can get them into his possession and away from their mother; that, had he known his trial was set for this term of court, he would have been present to defend, provided deponent's physician would have allowed him to do so; that deponent is not trying to shirk his responsibility to care and provide for his offspring, but positively refuses to support any woman who conspires with another to send him to the lunatic asylum, and who was seen by deponent in a compromised position with deponent's landlord; that deponent knew of no case in higher courts against him, was not bound over to County Court, received no notice from any source whatsoever that his trial was set. He therefore begs the honorable Court to grant him a new trial so that he may come into court and defend; that, if the Court will award him the custody of his children, he will properly take care of them, educate them to the best of his ability and means, and try to make good boys and girls out of them; that deponent has never been in any trouble before in his life; that he respects all the laws and tries to lead a decent life, and was happy with his wife and children until the time she and the man in question had him locked up in jail.
his B.B. X Hewitt mark
Sworn to before me this 3rd day July, 1929. H.G. Burbage. (L.S.) Not. Pub. S.C.
Mr. H.P. Burbage, for appellant.
Mr. D.B. Stover, for respondent.
December 31, 1929.
The opinion of the Court was delivered by
This is an appeal by the defendant, B.B. Hewitt, from an order of his Honor, M.F. Ansel, County Judge, refusing a motion for a new trial following conviction in the County Court of Greenville County, on a charge of nonsupport of his wife and minor children. The facts in the case pertinent to the appeal, briefly stated, are as follows:
The defendant has a wife and minor children, and, at the time of his conviction for the alleged offense and some time prior thereto, resided in the County of Greenville, in the county some distance from the City of Greenville, when the trial was had. November 30, 1928, Emma Hewitt, the wife of the defendant, swore out a warrant before Magistrate Victor, of Simpsonville in said county, charging the defendant with failing to support his wife and minor children; some time after the warrant was issued, on motion of the defendant, the case was transferred to Magistrate J.M. Barry, of Fountain Inn, in said county, and a preliminary hearing was had in January, 1929, before Magistrate Barry, who bound the defendant over to be tried in the sessions court, which convened on the second Monday of that month, January. On the first Monday in May, the grand jury returned a true bill against the defendant on said charge, and on the 10th day of May the case was transferred to the County Court, but no notice was served on the defendant or his counsel of the transfer of the case to the County Court. Just before the June term of the County Court the County Solicitor furnished the press of the City of Greenville a list of the cases for trial at that term of the Court, but the same was not published until Friday preceding the convening of the Court on Monday, and, so far as the record discloses, the only place where the information could be obtained was the Clerk of Court's office or the County Solicitor's office. When the case against the defendant was called at the June term of the Court, neither the defendant nor his attorney was present, but the Court proceeded with the trial, tried defendant in his absence, and the jury found the defendant guilty. The County Judge filed a sealed sentence with the Clerk of the Court. On the 3d day of July, defendant having learned of what had taken place, H.P. Burbage, attorney for the defendant, made a motion before his Honor, Judge Ansel, for a new trial, basing the motion upon the affidavit of the defendant and the affidavit of his attorney. His Honor, Judge Ansel, refused the motion and issued an order to that effect. From the order refusing a new trial, the defendant has appealed to this Court.
After careful consideration of the statements contained in the affidavits referred to (which will be reported) we are satisfied that the motion for a new trial should have been granted. The defendant is an illiterate man, residing in the country some distance from the county seat. He was evidently taken by surprise, also his counsel. If the statements contained in defendant's affidavit are true he certainly has a good defense to the charge against him. Considering the entire record, we think the defendant presented good grounds for the motion, and, in our opinion, his Honor, Judge Ansel, in the exercise of his discretion, should have granted the motion, and refusal to do so was error.
It is, therefore, the judgment of this Court that the order of his Honor, Judge Ansel, refusing to grant the defendant a new trial, be and is hereby reversed, and the case remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.