Opinion
13441
July 1, 1932.
Before MANN, J., Greenville, January, 1932. Affirmed.
Carlos A. Rector and another were convicted as accessories after the fact of manslaughter and from an order denying a motion for new trial on the ground of newly discovered evidence they appeal.
Following is the order of the Circuit Judge, directed to be reported:
"This case comes before me under the order of the Supreme Court allowing the defendants to move before me at this time for a new trial based upon the grounds of after-discovered evidence.
"I have before me the original petition of the defendants before the Supreme Court, together with the return of the State of South Carolina, in which preceding motion was made direct to the Supreme Court for leave to make this motion before me, and also such additional affidavits, exhibits and records as both the defendant-petitioners and the State have seen fit to submit on the argument before me. Several hours were devoted to argument, in which counsel were given ample time to discuss fully all the points relied upon. After careful consideration I conclude that the showing made would not warrant me in granting the new trial sought for the reasons that in my opinion the showing does not disclose that the evidence proposed as the basis for this motion is of that integrity, evidential or otherwise, that would justify the granting of the motion.
"It appears to me that the matters proposed to be submitted as evidence:
"(a) Are cumulative.
"(b) That the degree of diligence required by the law under circumstances like this has not been exercised by defendants or their counsel.
"(c) That the facts claimed would probably not change the result of the former trial.
"For these reasons it is:
"Ordered that the motion for a new trial be and the same is hereby overruled."
Messrs. J.F. Eppes, P.C. Cothran and Cole L. Blease, for appellants.
Messrs. J.G. Leatherwood and C.G. Wyche, for respondent, cite: Court's attitude on after-discovered evidence: 131 S.C. 21; 89 S.C. 51; 71 S.E., 291; Ann. Cas., 1912-D, 1298; 95 S.C. 471; 79 S.E., 645; 93 S.C. 195; 75 S.E., 281; 121 S.C. 290; 114 S.E., 538; 27 A.L.R., 1083; 122 S.C. 493; 115 S.E., 750; 44 S.C. 324; 14 S.C. 432; 2 Bay, 268. Abuse of discretion implies not merely error of judgment but error that is plain: 100 S.C. 331; 137 S.C. 75. Newly discovered evidence which merely contradicts testimony of witness not sufficient grounds for new trial: 70 S.C. 448; 50 S.E., 14; 38 S.C. 550; 16 S.E., 770; 38 S.C. 225; 16 S.E., 832; 44 S.C. 325; 21 S.E., 807; 22 S.E., 306; 85 S.C. 229; 130 S.C. 149. Evidence must not be cumulative: 134 S.C. 179; 146 S.C. 258; 87 S.C. 546; 87 S.C. 152; 14 S.E., 432; 15 S.C. 547; 33 S.C. 404; 41 S.C. 549; 19 S.E., 696; 51 S.C. 405; 29 S.E., 2; 38 S.C. 226.
July 1, 1932. The opinion of the Court was delivered by
This is an appeal from an order of the Circuit Court in the case of the State v. Carlos A. Rector et al., refusing a motion for a new trial on the ground of newly discovered evidence.
See opinion in case filed December 2, 1931, 166 S.C. 335, 164 S.E., 865.
The order of the Circuit Judge will be reported.
Some of the affidavits on which the motion was based were cumulative; but none were excluded from consideration on that ground. After consideration of all the evidence offered and the rebutting affidavits, the Circuit Judge held: "The showing does not disclose that the evidence proposed as the basis of this motion is of that integrity, evidential or otherwise, that would justify the granting of the motion * * * C. The facts claimed would probably not change the result of the former trial."
The controlling issue was one of fact. What credit or weight should be given to the affidavits on which the motion was based?
In their exceptions appellants contend this should have been left for a jury on a new trial; when in all probability a jury of twelve men, who do not use the same yardstick as lawyers and Judges, would entertain different notions as to the weight and sufficiency of the evidence. More than one inference may be drawn from the evidence. Appellants' contention was repudiated in State v. Duestoe, 1 Bay, 380, where it was said: "It was the duty of the Judges," under the then existing Constitution, "to judge, from the necessity of the case, not only of the credibility of the witnesses brought forward in this manner to destroy the verdict of twelve men upon their oath, but to inquire into and sift such affidavits with an exact and scrupulous attention; and to direct any other examinations which could in any manner develop the truth of the matter; as no other body of men could, at this stage of proceedings, take it under consideration but the Judges." This jurisdiction has now been conferred on the Circuit Court or Judge. The Supreme Court is without jurisdiction to weigh contradictory evidence or to review findings thereon in a law case. Sams v. Hoover, 33 S.C. 404, 12 S.E., 8; State v. Marchbanks, 61 S.C. 17, 39 S.E., 187; State v. Anderson, 85 S.C. 229, 234, 67 S.E., 237, 137 Am. St. Rep., 887; State v. Jones, 89 S.C. 49-53, 71 S.E., 291, Ann. Cas., 1912-D, 1298; State v. Tripp, 133 S.C. 296, 130 S.E., 888.
The affidavits on which the motion was heard were contradictory; and the reputation of the affiants H. E. Foister, J.H. Black, and Carol Gambrell for truth and veracity were attacked by E.E. Neil, P.E. Newell, J.S. Spencer, M.A. Brown, and W.N. Johnson. The affidavit of A.J. Hopkins as to an expression of opinion by the juror Bramlett was denied by the latter under oath. The affidavits of Mr. and Mrs. W.C. Jones and Dan Tassy as to Baldy Johnson's connection with a pistol was denied by Johnson and E.F. Wood. The statements of C.W. Bangle and E.W. Allen were known to counsel at the time of trial, and counted of little value. The affidavits of Maxie Wardlaw, J.H. Black, and H.E. Foister as to changed statements by Blair Rook were denied by the latter, and circumstantially by W.F. Christopher and C.E. Huff. The affidavit of G.M. Edwards was denied by O.S. Garrett. The affidavit of Carol Gambrell was denied by him as well as by Rook. The affidavit of J.D. Marchbanks was denied by Jim Hawkins, Will Stuckey and George B. King, who also contradict statements of Frank Cox. The affidavit of A.L. Bailey is indefinite, like those of Bangle and Allen of little relevancy. Counsel for appellants said that on this motion the credibility of W.W. Rogers was the test. His good reputation was vouched for by Solicitors Spigner and Callison, and also by Judges Dorsey and Pomeroy. But Rogers is contradicted on the most material point of his communications to counsel by Solicitor Leatherwood and Judge Smith. His knowledge of the alleged third bullet is inconsistent with the circumstances detailed by W.M. Perry, L. W. Hammond, Walter C. Willis, E.L. Craigo, Reuben Gosnell, and C.R. Bramlett.
As said in State v. Bradford, 87 S.C. 549, 70 S.E., 308, "If the statements contained in all of them [the affidavits] had been admitted in evidence at the trial, there would have remained a sharp issue of fact, which might have been decided * * * according to the view taken by the jury of the credibility of the witnesses. It cannot be said, therefore, that the affidavits must necessarily lead any reasonable mind to the inference that the newly discovered evidence would probably change the result. Nothing short of this would justify the conclusion that the Circuit Court abused its discretion in refusing the motion. This being so, the law does not allow this Court to reverse the decision of the Circuit Court that a new trial should not be granted."
The record shows neither an abuse of discretion, nor error of law on the part of the Circuit Judge.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES STABLER, CARTER, and BONHAM concur.