Opinion
13508
November 9, 1932.
Before TOWNSEND, J., Sumter, June, 1930. Affirmed.
O.E.S. Howell was convicted of murder and from an order denying his motion for a new trial he appeals.
The order of Judge Townsend, referred to in the opinion, follows:
After considering the case very carefully, I find that the juror, S.G. Windham, was a competent juror, and the objection that is made to him in the affidavit cannot be sustained. So far as the relationship is concerned, the affidavit does not state that Mr. Windham is related by affinity or by blood to the defendant, Howell. The fact does appear that his wife was related by affinity to Howell, that is, that the first cousin of the wife of Windham married Howell, but that would not make Howell related to Windham. So that, when Mr. Windham was asked on his examination of voir dire on the trial before me whether he was related by blood or marriage to the defendant, Howell, his answer that he was not related was true.
Now the next question is, Was he indifferent or was he prejudiced against Howell, when he sat on the jury at the trial in February? The examination at that time satisfied me he was indifferent and not prejudiced one way or the other. The objection which Mr. Howell now undertakes to make was a matter which was within the knowledge of Howell at the time of the trial, and to grant him a new trial merely because he now comes into Court and swears he did not recall Windham's relationship to Miss Evans would endanger the administration of justice in this state. Of course, what was in Howell's mind at the time of the trial is something as to which others cannot speak, except as the circumstances of the case throw light upon it. I do not think the defendant has made such a showing upon the motion before me as would justify me in setting aside the judgment and granting a new trial. I am satisfied that the motion must be refused, and I therefore ordered that the motion for a and excessive rate of speed and an unlawful rate of speed.
It is ordered that the above-entitled motion be and is hereby refused, for the reasons stated by me to the stenographer whose notes on the hearing before me will be transcribed and filed with the clerk of Court.
Mr. A.L. King, for appellant.
Messrs. F.A. McLeod, Solicitor and R.M. Jefferies, for the state.
November 9, 1932. The opinion of the Court was delivered by
After a conviction of murder and sentence to death, the appellant herein moved before the Circuit Court for a new trial upon after discovered evidence. His motion was refused, and this appeal is from the order of refusal.
The ground upon which the motion was made was that a juror, S.G. Windham, was related to the appellant by affinity, and also that the juror was prejudiced against him. At the hearing of the motion, the juror was examined in open Court, and after this examination and the reading of certain affidavits the Circuit Judge refused to grant the motion.
A complete history of this most mystifying case is set forth in the former appeal to this Court, as found in 162 S.C. 394, 160 S.E., 742. The very nature of this case in all its aspects has caused this Court to lend a most patient ear to the petition of the appellant on two occasions, but we can find no error in the ruling of the Circuit Judge, whose order and reasons therefor will be reported.
It is the judgment of this Court that the order of the Circuit Court refusing the motion for a new trial be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES STABLER, CARTER, and BONHAM concur.